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UNIVERSITY  OF  CALIFORNIA 

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TO  THE 


MISCELLANEOUS  DOCUMENTS 


OF  THE 


HOUSE  OF  REPRESENTATIVES 


FOR   THE 


SECOND  SESSION  OF  THE  FORTY-SEVENTH  CONGRESS. 


1882-'83. 


WASHINGTON": 
GOVERNMENT  PRINTING  OFFICE. 

1883. 
79a 


'*«'''.  !"'•  's, 


N; 


mi)EX  TO  HOUSE  MISCELLAXEODS  DOCUMENTS. 


CONTENTS  OF  THE  VOLUMES. 


Vol.   1 . .  Xos.  1  to  18  inclusive,  except  Nos.  6  and  9. 

Vol.  2..yo. 6, pai-tl. 

Vol.  3..N0. 6,  part  2. 

Vol.   4. -Nos.  19  to 38  iaclnsive,  except  Xos.  26, 27, 

28, 30,  31, 32,  33,  34,  35,  and  37. 
Vol.  o-.Xo. 26. 
Vol.  6.. No. 27. 
Vol.  7.. No.  28. 

Vou   8.  -Nos.  30,  31,  32,  33,  and  34. 
Vol.  9.. No. 35. 


Vol.  10. -No.  37. 

Vol.  11 . .  N08. 39  and  40. 

Vol.  12.. No.  41. 

Vol.  13 ..  No.  42.    Eoports  of  the  Tenth  CensuB. 

Vol.  14.. No.  43. 

Vol.  15..  No.  44. 

Vol.  16.  -No.  45,  part  1. 

Vol.  17.  .No.  45,  part  2. 

Vol.  18.. No.  45,  part  3. 

Vol.  19. -No.  45.  part  4. 


INDEX  TO  THE  DOCUMENTS. 


Subject. 


Alabama,  testimony  in  the  contested-election  case  of  John 
W.  Jones  1-8.  Charles  M.  Shelley,  from  the  fourth  district 
of  the  State  of , 

Ames,  J.  G.,  communication  from,  et  oZ.,  relative  to  publica- 
tion and  distribution  of  public  documents 

Appropriations,  new  offices.,  &c.,  list  of,  made  during  the  sec- 
ond session  of  the  Forty-seventh  Congress 

Appropriations,  letter  from  the  Commissioners  of  the  District 
of  Columbia,  transmitting  estimates  of.  (See  H^Ex.  Doc, 
Vol.  17.) 


B. 


Baird,  Spencer  F.,  Secretary  of  the  Smithsonian  Institution, 
communication  from,  et  al.,  relative  to  publication  and  dis- 
tribution of  public  documents 

Bullion  certificates,  remarks  of  Hon.  H.  C.  Burchard,  Director 
of  the  United  States  Mint,  in  relation  to 

Burchard,  Hon.  H.  C,  Director  of  the  United  States  Mint,  re- 
marks of,  in  relation  to  bullion  certificates 

C. 

Census,  reports  of  the  Tenth 13 

Centennial,  letter  from  the  Secretary  of  the  Smithsonian  In- 
stitution relative  to  the  exhibit  of  the  United  States  execu- 
tive departments  at^the 

Claims,  Court  of: 

Statement  of  judgments  rendered  by  the,  for  year  ending 

December  3,  ISBl 

Statement  of  judgments  rendered  by  the,  for  year  ending 
December  3, 1882 


Vol. 

No. 

4 

21 

1 

12 

4 

36 

9 

1 

12 

4 

22 

4 

22 

13 

42* 

4 

20 

1 

5 

4 

25 

Part. 


24807'8 


^^imm»- 


nz 


"b 


IV 


INDEX    TO    MISCELLANEOUS   DOCUMENTS. 


Subject. 


VoL  I  No. 


Part. 


Clerk  of  the  House  of  Representatives,  report  of  expenditures 

by  the,  from  Decembers,  1881, to  June  30,  1882 

Commercial  Relations,  reports  from  the  Consuls  of  the  United 
States  on  the  commerce,  manufacture,  &c.,  of  their  con- 
sular districts 

Commissioners  of  the  General  Land-Office,  letter  from  the, 
relating  to  railroads  not  completed  within  the  time  fixed 

bylaw 

Commissioners  of  the  District  of  Columbia,  letter  from  the, 
transmitting  estimates  of  appropriations.  (See  Ex.  Doc, 
Vol.  17.) 

Committees,  list  of  standing  and  select 

Congress,  list  of  reports  made  to 

Consular  reports 

Consuls  of  the  United  States,  reports  from  the,  on  the  com- 
merce, manufactures,  &c.,of  their  consular  districts 

Contested,  elections : 

Digest  of  cases  of,  with  index 

Testimony  in  the  case  of  John  W.  Jones  vs.  Charles  M. 
Shelley,  from  the  fourth  district  of  the  State  of  Ala- 
bama  

Court  of  Claims : 

Statement  of  judgments  rendered  by  the,  for  year  end- 
ing December  3,  1881 

Statement  of  judgments  rendered  by  the,  for  year  end- 
ing December  3,  1882 

D. 

Decisions,  rendered  by  the  First  Comptroller  of  the  Treasury. 

District  of  Columbia,  letter  from  the  Commissioners  of  the, 

transmitting  estimates  of  appropriations  for  the.     (See  Ex. 

Doc,  Vol.  17.) 

Documents : 

Letter  from  the  Doorkeeper  of  the  House  of  Kepresent- 
tatives,  transmitting  a  list  of,  in  the  folding-room  of 

the  House 

Letter  from  J.  G.  Ames,  Spencer  F.  Baird,  and  A.  R.  Spof- 
ford,  relative  to  the  publication  and  distribution  of , . . . . 
Doorkeeper  of  the  House  of  Representatives: 

Letter  from  the,  transmitting  a  list  of  documents  in 

the  folding-room  of  the  House 

Inventory  of  public  property  in  charge  of  the 

E. 
Elections : 

Testimony  in  contested  case  of  John  W.  Jones  vs.  Charles 

M.  SheUey ,  from  the  fourth  district  of  Alabama 

Digest  of  cases  of  contested,  with  index  of  same 

Entomological  Commission,  third  report  of  the 

Eulogies : 

Upon  the  life  and  services  of  Hon.  William  M.  Lowe,  de- 
ceased   

Upon  the  life  and  services  of  Hon.  J.  T.  Updegraff,  de- 
ceased   

Upon  the  life  and  services  of  Hon.  Godlove  S.  Orth,  de- 
ceased  , 

Upon  the  life  and  services  of  Hon.  R.  M.  A.  Hawk,  de- 
ceased  , 

Upon  the  li^e  and  services  of  Hon.  John  W.  Shackelford, 

deceased , 

Expenditures,  letter  from  the  Clerk  of  the  House  of  Repre- 
sentatives, transmitting  a  report  of  the,  of  the  House  from 
Deceiflber  5, 1881,  to  June  30, 1882 , 


11 
39 


17 
9 


2 

4 

19 

39 

35 

20 

5 
25 

37 
9 

7 
12 


4 

9 

15 

21 
25 
44 

8 

30 

8 

31 

8' 

32 

8 

33 

8 

34 

1 

11 

<\ 


INDEX    TO    MISCELLANEOUS    DOCUMENTS. 


Subject. 


Vol. 

No. 

1 

14 

10 

37 

11 

40 

1 

7 

1 

14 

1 

17 

1 

16 

14 

43 

8 

33 

1 

11 

1 

1 

1 

3 

1 

2 

8 

33 

8 

32 

1 

18 

1 

16 

1 

12 

13 

42 

1 

5 

4 

25 

16 

45 

Part. 


F. 

First  Comptroller  of  the  Treasury : 

Letter  from  the,  transmitting  a  report  of  the  expenses  of 
the  illness  and  death  of  James  A.  Garfield,  late  Pres- 
ident of  the  United  States 

Decisions  rendered  by  the,  with  appendix  (Vol.  Ill,  1882) . . 
Fish  Commission,  bulletin  of  the  United  States  (Vol.  II,  1882) . . 
Foldipg-room  of  the  House  of  Representatives,  list  of  docu- 
ments in  the^ 


G. 

Garfield,  James  A.,  letter  from  the  First  Comptroller  of  the 
Treasury,  transmiting  a  report  of  the  expenses  of  the  ill- 
ness ami  death  of,  late  President  of  the  United  States 

General  Land  Office,  letter  from  the  Commissioner  of  the,  re- 
lating to  railroads  not  completed  within  the  time  fixed  by 

law 

Geological  Survey: 

Bulletin  of  the,  of  the  United  States 

Monographs  of  the,  of  the  United  States,  Vol.  VI 

H. 

Hawk,  Hon.  R.  M.  A.,  eulogies  upon  the  life  and  services  of, 
late  a  member  of  the  House  of  Representatives  from  the 

fifth  district  of  the  State  of  Illinois 

House  of  Representatives : 

Letter  from  the  Clerk  of  the,  transmitting  a  report  of  the 
expenditures  of  the,  from  December  5,/ 1881,  to  June 

30,1882 

List  of  members  of  the,  arranged  by  States 

List  of  members  of  the,  arranged  alphabetically,  show- 
ing the  committees  of  which  they  are  members 

List  of  standing  and  select  committees  of  the - . . 

I. 

Illinois,  eulogies  upon  the  life  and  services  of  Hon.  R.  M.  A. 
Hawk,  late  a  member  of  the  House  of  Representatives  from 

the  fifth  district  of  the  State  of 

Indiana,  eulogies  upon  the  life  and  services  of  Hon.  Godlove 
S.  Orth,  late  a  member  of  the  House  of  Representatives 

from  the  ninth  district  of  the  State  of 

Indians,  memorial  of  the  Creek  Nation  of,  relating  to  the 

allotment  of  lands  in  severalty 

Interior  Department : 

Bulletin  of  the  United  States  geological  survey,  from  the. 

Letter  from  J.  G.  Ames,  superintendent  of  documsnts  of 

the,e<  al.,  relative  to  the  publication  and  distribution 

of  public  documents 

Reports  of  the  Tenth  Census : 

J. 

Judginents: 

List  of,  rendered  by  the  Court  of  Claims  for  the  year  end- 
ing December  3,1881 

List  of,  rendered  by  the  Court  of  Claims  for  the  year  end- 
ing December  3, 1882 '. 

L. 

Lands,  public,  existing  laws  of  the  United  States,  of  a  general 
and  permanent  character,  and  relating  to  the  survey  and 
disposition  of  the.  (H.  R.  Ex.  Doc.  47,  Forty-sixth  Con- 
gress, third  session) 


VI 


INDEX    TO    MISCELLANEOUS   DOCUMENTS. 


Subject. 


Laws,  the  existing,  of  the  United  States,  of  a  general  and  jier- 
manent  character,  and  relating  to  the  survey  and  disposi- 
tion of  the  public  domain.      (H.  R.  Ex.  Doc.  47,  part  1,  i 
Forty-sixth  Congress,  third  session) 16 

Librarian  of  Cengress,  letter  from  A.  E.  Spotford,  the,  et  ah, 
relative  to  the  publication  and  distribution  of  docu- 
ments           1 

List  of  appropriations  for  new  offices,  &c I        4 

List  of  members  of  the  House  of  Representatives,  arranged  ! 
by  States I        1 

List  of  members  of  the  House  of  Representatives,  arranged  j 
alphabetically,  showing  the  committees  of  which  they  are  j 
members :         1 

List  of  reports  made  to  Congress i        1 

List  of  standing  and  select  committees  of  the  House  of  Repre- 
sentatives   

Lowe,  Hon.  William  M.,  eulogies  upon  the  life  and  services 
of,  late  a  member  of  the  House  of  Representatives  from  the 

.    eighth  district  of  Alabama .. 


M. 

Memorial  of  the  Creek  Nation  of  Indians,  relating  to  the  al- 
lotment of  lands  in  severalty 

Memorial  of  the  Tice  Manufacturing  Company 

Mili  tary  Academy,  report  of  the  Board  of  Visitors  to  the,  for 
year  1882 

Military  district,  the  Virginia,  in  Ohio,  papers  designed  to 
illustrate  the  necessity  for  the  passage  of  bill  H.  R.  7015,  re- 
lating to  the 

Mint,  remarks  of  Hon.  N.  C.  Burchard,  Director  of  the  United 
States,  relative  to  bullion  certificates 

Monographs,  of  the  United  States  Geographical  Survey  (Vol. 
VI) 

N. 

National  Soldiers'  Home,  letter  from  the  Board  of  Managers 
of  the,  transmitting  the  annual  report  of  the  oiierations  of 
the,  for  the  fiscal  year  ending  June  30, 1882 

New  offices,  appropriations,  «fcc.,  list  of,  made  during  the  sec- 
ond session  of  the  Forty-seventh  Congress 

North  Carolina,  eulogies  upon  the  life  and  services  of  Hon. 
John  W.  Shackelford,  late  a  member  of  the  House  of  Repre- 
sentatives from  the  third  district  of  the  State  of 


O. 

Offices,  new,  appropriations,  &c.,  list  of,  made  during  the  sec- 
ond session  of  the  Forty-seventh  Congress 

Ohio,  Virginia  military  district  in : 

Papers  designed  to  show  the  necessity  for  the  passage  of 

bill  H.  R.  7015,  relating  to  the 

Eulogies  upon  the  life  and  services  of  Hon.  J.  T.  Upde- 
gralf,  late  a  member  of  the  House  of  Representatives 

from  the  sixteenth  district  of  the  State  of 

Order,  questions  of,  raised  and  decided  in  Committee  of  the 
Whole  House  on  general  appropriation  and  revenue  bills.. 
Orth,  Hon.  Godlove  S.,  eulogies  upon  the  life  and  services  of, 
late  a  member  of  the  House  of  Representatives  from  the 
ninth  district  of  th«  State  of  Indiana 


Population,  statistics  of  the,  of  the  United  States  at  the 
Tenth  Census 


14 


13 


Part. 


45 


12 
36 


3 
4 

2 

30 


18 
8 

24 


10 
22 
43 


13 

36 

34 

36 

10 

31 
38 

32 

42 


/ 


INDEX    TO   MISCELLANEOUS   DOCUMENTS. 


VII 


Subject. 


Public  property,  letter  from  the  Doorkeeper  of  tlie  House  of 
Representatives  trausmitting  an  inventory  of,  in  the  fold- 
ing-room of  the  House 

Questions  of  order,  raised  and  decided  in  Committee  of  the 
Whole  House  on  general  appropriation  and  revenue  bills.. 

?R. 

Railroads,  letter  from  the  Commissioner  of  the  General  Land 
Office,  transmitting  a  report  of,  not  completed  within  the 

time  tixed  by  law 

Rebellion,  War  of  the.     (Series  1,  vol.8.) 

Rebellion,  War  of  the.     (Series  1,  vol.  9. ) 

Reports : 

Of  the  Tenth  Census 

Constilar 

First  Comptroller  of  the  Treasury,  of  expenses  of  the  ill- 
ness and  death  of  James  A.  Gartield,  late  President  of 

the  United  States 

List  of,  made  to  Congress 

Of  Tariff  Commission 

Of  the  Clerk  of  the  House  of  Representatives,  of  expend- 
itures by  him  from  December  5, 1881,  to  June  30, 1882  .. 

Of  the  Smithsonian  Institution 

Of  Board  of  Visitors  to  the  Uuitfed  States  Military  Acad- 
emy for  year  1882 

Rivers  and  Harbors,  letter  from  the  Secretary  of  War  rela- 
tive to  certain  works  on 


Shackelford,  Hon.  John  W.,  eulogies  upon  the  life  and  serv- 
ices of,  late  a  member  of  the  Hoiise  of  Representatives  from 

the  third  district  of  the  State  of  North  Carolina — 

Smithsonian  Institution : 

Letter  from  Spencer  F.  Baird,  Secretary  of  the,  relative 

to  the  publication  and  distribution  of  publicdocuments. 

Letter  from  the  Secretary  of  the,  relative  to  the  exhibit 

of  the  United  States  at  the  Centennial  Exhibition 

Annual  Report  of  the 

Soldiers'  Home,  letter  from  the  board  of  managers  of  the  Na- 
tional, transmitting  the  annual  report  of  the  operations  of 

the,  for  fiscal  year  ending  June  30, 1882 

Spoftbrd,  A.  R.,  Librarian  of  Congress,  letter  from,  et  al., 
relative  to  the  publication  and  distribution  of  public  docu- 
meuts 

T. 

Tariff,  relating  to  manufactured  articles  subject  to  duty  .-■... 

Tariff  Commission,  report  of  the 

Tice  Manufacturing  Company,  memorial  of  the 

Treasury : 

Letter  from  the  First  Comptroller  of  the,  transmitting  a 
report  of  the  expenses  of  the  illness  and  death  of  James 

A.  Garfield,  late  President  of  the  United  States 

Decisions  of  the  First  Comptroller  of  the,  with  appendix. 
(Vol.  Ill,  1882.) 

U. 

Updegraff,  Hon.  J.  T. ,  eulogies  upon  the  life  and  services  of, 
late  a  member  of  the  House  of  Representatives  from  the 
sixteenth  district  of  the  State  of  Ohio 


4 

2,3 

1 


No. 


Part. 


7 
38 


1 

6 
12 

17 
27 
41 

13 

4 

42 
19 

1 

1 

2;  3 

14 
4 
6 

1 
5 

11 
26 

4 

24 

1 

15 

34 


12 

20 
26 


13 
12 


29 
6 


14 
37 


1,2,3,4,5 


1,2,3,4,5 


8        31 


VIII 


INDEX    TO    MISCELLANEOUS    DOCUMENTS. 


Subject, 


V. 

Virginia  military  district  iu  Ohio,  jjapers  designed  to  illus- 
trate the  necessity  for  the  passage  of  bill  H.  R.  7015  relat- 
ing to  the 

W. 

War  of  the  Eebellion.     (Series  1,  vol.  8.) 

War  of  the  Eebellion.     (Series  1,  vol.  9.) 

War,  Secretary  of,  letter  from  the,  relative  to  certain  works 
on  rivers  and  harbors 


Vol. 

No. 

1 

10 

6 

27 

12 

41 

1 

15 

Part. 


47Tn  Congress,  )   HOUSE  OF  EEPEESENTATIVES.    (  Mis.  Doc. 
2d  Session.        J  \    No.  35. 


DIGEST  OF  ELECTION  CASES. 


<:. 


CASES 


OF 


CONTESTED   ELECTIONS 


IN  THE 


HOUSE  OF  REPRESENTATIVES, 


FORTY-SEVENTH     CONaRESS, 


FROM 


1880  TO  1882,  INCLUSIVE. 


Compiled  by  J.  H.  ELLSWOETH,  Clerk  to  the  Committee  on  Elections, 
UNDER  Act  approved  March  3,  1883. 


r 


WASHIl^GTON: 

GOTERNMENT   PRINTING  OFFICE. 
1883. 


/^ 


FORTYSEVENTH  COlSrORBSS 


COMiiyCIXTEE;    ON    BliECTIOlS'S. 


William  H.  Calkins,  of  Indiana. 
George  C.  Hazelton,  of  Wisconsin. 
John  T.  Wait,  of  Connecticut. 
William  G.  Thompson,  of  Iowa,. 
Au)brose  A.  Ranney,  of  Massachasetts. 
James  M.  Ritchie,  of  Ohio. 
Augustus  H.  Pettiboue,  of  Tennessee. 
Samuel  H.  Miller,  of  Pennsylvania. 


Ferris  Jacobs,  jr.,  of  New  York. 

John  Paul,  of  Virginia, 

Frank  E.  Beltzhoover,  of  Pennsylvania. 

Gibson  Atherton,  of  Ohio. 

Lowndes  H.  Davis,  of  Missouri. 

Greorge  tV.  Jones,  of  Texas. 

Samuel  W.  Moulton,  of  Illinois. 


James  H.  Ellsworth,  Clerk. 


DIGEST  OF  ELECTION  CASES. 


FORTY-SEVENTH  CONGRESS,  FIRST  AND  SECOND  SESSIONS. 


PAUL  STROBACH  vs.  HILARY  A.  HERBERT. 

Second  Coxoressional  District  of  Alabama. 

Contestant  claimed  among  other  things  that  the  vote  of  a  county  sfiould  be  thrown  out 
because  the  proper  officers  failed  to  give  notice  of  the  election,  and  appoint 
managers ;  and  that  a  number  of  votes  were  counted  for  Herbert,  contestee,  which 
were  spelled  Hebert. 

Held,  That  where  the  statutes  of  a  State  provide  that  when  for  any  cause  managers 
and  other  officers  of  election  are  not  appointed,  the  qualified  electors  present  may 
elect  them ;  and  it  appears  that  this  was  done  and  an  election  held  at  the  time  and 
place  fixed  by  law,  such  vote  of  such  county  must  be  counted.  That  as  to  the 
ballots  printed  Hebert,  the  evidence  shows  that  they  were  printed  so  by  mistake 
of  the  printer,  that  no  person  of  like  name  was  then  being  voted  for  or  was  a  can- 
didate, and  that  the  ballots  were  intended  to  be  cast  for  Herbert,  and  must  be 
counted  for  him.  • 

The  House  adopted  the  report. 


June  27,  1882. — Mr.  Ranney,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

The  Committee  on  Elections,  to  whom  the  above  cause  was  submitted, 
beg  leave  to  report  that  they  have  examined  with  care  the  testimony  in 
the  case  and  the  able  and  elaborate  arguments  submitted,  and  they 
have  come  to  the  conclusion  that  the  contestee  is  entitled  to  the  seat 
he  holds. 

Your  committee  do  not  deem  it  necessary  to  enter  into  any  detailed 
discussion  of  the  case.  A  few  statements  will  show  sufficient  grounds 
on  which  to  rest  the  conclusion  they  have  reached. 

The  contestee  in  his  brief  claims  that  after  making  allowance  for,  and 
giving  full  effect  to,  all  the  evidence  in  the  case  he  is  elected  by  3,357 
votes. 

Contestant  is  represented  by  Abraham  &  Mayer  and  Robert  G.  In- 
gersoll. 

Messrs.  Abraham  &  Mayer  claim  in  their  brief  that  Mr.  Strobach  is 
elected  by  938  votes.  This  majority  is  obtained  by  making  many  al- 
lowances and  deductions  which  they  contend  are  justified  by  the  evi- 
dence.   Your  committee  do  not  wish  to  be  considered  as  approving  or 


6  DIGEST  OF  ELECTION  CASES. 

disapproving  the  positions  taken  by  counsel,  which  are  not  specially 
discussed.  It  is  sufficient  for  the  purposes  of  this  case  to  notice  two  of 
the  items  in  the  count  made  by  Messrs.  Abraham  &  Mayer.  They 
throw  out  the  vote  of  Escambia  County,  by  which  contestee  is  made  to 
lose  a  majority,  as  given  by  the  returns,  of  634,  and  they  count  oft"  from 
Herbert  1,190  votes  in  Pike  County,  on  the  alleged  ground  that  Her- 
bert's name  was  spelled  Hebert  instead  of  Herbert  in  this  number  of 
ballots. 

As  to  Escambia  County,  by  the  law  of  Alabama  it  is  the  duty  of  the 
sheritt",  judge  of  probate,  and  clerk  of  the  circuit  court  to  give  notice  of 
an  election  and  appoint  managers.  This  duty  the  sheriff,  judge  of  pro- 
bate, and  clerk  of  the  circuit  court  of  Escambia  County  failed  to  per- 
form. But  by  the  statutes  of  Alabama  it  is  provided  that  when  for  any 
cause  managers  and  other  officers  of  election  are  not  appointed,  the 
qualified  electors  present  may  elect  them.  It  appears  that  this  was 
done  and  the  election  held ;  and  it  further  appears  that  on  the  30th  day 
of  October,  1880,  the  chairman  of  the  Congressional  executive  committee 
of  the  Democratic  party  gave  contestant  notice  that  this  course  would 
be  pursued,  and  invited  him  to  name  the  persons  he  desired  as  managers 
to  represent  them  at  the  different  boxes.  Under  these  circumstances, 
as  the  law  is  well  settled  that  when  time  and  places  of  holding  an  elec- 
tion are  fixed  by  law  no  notice  by  the  officials  is  essential,  your  committee 
can  see  no  good  ground  upon  which  to  exclude  the  vote  of  Escambia 
County. 

This  conclusion  derives  additional  weight  from  the  fact  that  contestant 
in  his  notice  of  contest  made  no  charge  against  the  legality  of  the  elec- 
tion as  held  in  Escambia  County. 

As  to  the  alleged  misnomer  in  Pike  County,  your  committee  find  that 
the  evidence  does  not  establish  that  more  than  fifty  votes  were  cast  in  . 
which  Mr.  Herbert's  name  was  spelled  Hebert.  They  further  find  that 
these  ballots  were  intended  to  be  cast  for  Herbert;  that  they  were 
printed  Hebert  by  mistake  of  the  printer ;  that  no  person  of  like  naime 
except  contestee  was  being  voted  for  or  was  a  candidate,  and  they  be- 
lieve that  under  the  law  and  the  precedents  these  votes  were  rightfully 
counted  for  contestee.  Indeed,  Mr.  Ingersoll,  one  of  contestant's  coun- 
sel, admits  they  should  be  so  counted. 

If  we  then  restore  to  contestee  his  majority  in  Escambia,  634,  and  the 
votes  taken  from  him  in  Pike,  1,190,  he  gains  from  these  two  items  alone, 
on  the  count  of  Abraham  &  Mayer,  1,824. 

Deducting  from  this  sum  the  majority  claimed  by  Abraham  &  Mayer, 
938,  gives  Herbert  a  majority  of  886. 

Having  reached  this  substantial  majority  by  making  these  two  cor- 
rections in  the  calculation  of  Messrs.  Abraham  &  Mayer,  we  deem  it 
unnecessary  to  examine  whether  the  other  claims  to  allowances  and  de- 
ductions made  by  them  are  well  founded. 

In  the  second  brief  of  Mr.  Ingersoll  for  contestant  he  admits  that  Mr. 
Strobach's  majority  is  only  403. 

In  the  estimate  %  which  he  reaches  this  conclusion  he  also  deducts 
from  Herbert  his  majority  in  Escambia  County,  to  which  the  committee 
have  decided  contestee  was  entitled,  llestoring  simply  the  vote  of  this 
county  and  making  no  further  corrections  in  Mr.  Ingersoll's  estimates, 
Herbert  is  elected  by  the  difference  between  463  and  634,  say  by  171 
votes. 

But  there  are  other  claims  put  forward  in  behalf  of  contestant,  in  Mr. 
Ingersoll's  brief,  which  we  think  equally  untenable. 

He  deducts  177  from  Herbert  at  Manniugham,  Butler  County,  and 
164  at  Spring  Hill,  Butler  County. 


STROBACH    VS.    HERBERT.  7 

The  vote  at  these  boxes  is  not  sissailed  in  the  pleadings  or  by  the 
evidence  further  than  by  a  comparison  with  the  census  returns.  This 
comparison  does  not  show  that  the  vote  was  unduly  large,  but  simply 
that  Herbert  received  more  than  the  white  vote  and  Strobach  less  than 
the  colored  vote.  Your  committee  cannot  consent,  for  such  reason  as 
this,  to  disturb  the  returns  of  the  regularly  constituted  authorities. 

The  restoration  of  the  returns  of  these  boxes,  in  addition  to  the  vote- 
of  Escambia,  would  leave  the  majority  for  the  contestee  512,  admitting 
every  other  claim  made" by  counsel  for  contestant. 

We  also  think  it  equally  clear  that  the  evidence  does  not  establish 
that  300,  as  is  claimed  for  contestant  in  one  count,  or  275  votes,  as  is 
claimed  in  the  other,  were  taken  from  contestant  and  added  to  contes- 
tee at  box  2,  C.  H.,  Montgomery  County.  Denying  this  claim  would 
further  increase  the  majority  of  contestee  by  550  votes  in  one  count  and 
600  in  the  other. 

But  your  committee  do  not  in  any  manner  mean  to  indorse  or  agree 
to  the  justice  of  all  the  other  claims  set  up  for  contestee.  They  simply 
deem  it  unnecessary  further  to  examine  them,  having  reached  the  con- 
clusion by  the  examination  of  a  few  of  the  items  of  contest  that  coii- 
testee  is  duly  elected. 

Contestee  would  seem  to  have  been  elected  by  a  much  larger  majority 
than  either  of  those  given  above,  but  they  have  adopted  as  the  readi- 
est mode  of  reaching  a  conclusion  the  plan  of  examining  only  a  few  of 
the  items  claimed  by  contestant's  counsel. 

This  examination,  resulting  as  is  shown  above,  demonstrates  that, 
conceding,  for  the  sake  of  argument,  everything  else  claimed  by  the  able 
counsel  for  contestant,  the  contestee  was  elected  by  a  decided  majority. 

Having  reached  this  conclusion,  your  committee  do  not  deem  it  essen- 
tial that  they  should  inquire  further  into  the  matter,  as  the  precise  ma- 
jority is  immaterial. 

The  only  doubt  which  the  committee  has  had  in  regard  to  this  case  is 
whether  the  irregularities  and  frauds  alleged  and  appeariifg  in  evidence* 
were  not  sufficient  to  render  the  election  of  contestee  void. 

Contestant  has  arrayed  the  schemes  of  fraud  conceived  and  executed 
in  the  election  held  in  August,  1880,  and  claims  that  the  same  practices 
were  resorted  to  in  the  November  election  of  that  year.  The  committee 
have  scrutinized  closely  the  proof  and  evidence  in  this  regard,  and  are 
impressed  with  the  fact  that  this  seems  to  have  been  so  to  a  considerable 
extent.  But  applying  the  rules  of  law  which  obtain  in  election  cases, 
it  is  not  satisfactorily  proved  that  there  was  any  such  general  scheme 
of  fraud  which  appears  to  have  been  successfully  practiced  in  a  sufficient 
number  of  cases  as  to  change  the  general  result. 

The  statute  law  of  the  State  of  Alabama  has  also  been  arraigned  as 
wholly  insufficient  and  inadequate  to  secure  an  honest  election,  and  as 
a  safeguard  against  fraudulent  practices  which  seems  to  be  so  rife  in 
that  State.  With  this  the  committee  have  nothing  to  do,  as  a  general 
principle.  But  it  may  be  permitted  to  say  that  the  charge  seems  to  be 
true  to  a  lamentable  degree.  The  law  seems  to  be  quite  severe  as  against 
the  elector.  But  as  regards  the  officers  and  managers  of  election,  there 
appears  to  be  no  adequate  provision  to  insure  fidelity  and  honesty  of 
action,  or  to  punish  derelictions  of  duty. 

The  committee  have  felt  bound,  however,  to  follow  the  law  as  it 
stands. 

The  committee  unanimously  recommend  the  adoption  of  the  following 
resolution : 

Resolved,  That  contestant  be  allowed  to  withdraw  his  contest  without 
I^rejudice. 


8  DIGEST    OF    ELECTION    CASES. 

« 

AliGERNON  A.  MAB80N  vs.  WILIilAM  C.  GATES. 

Third  Congressional  District  of  Alabama. 

Contestant  served  notice  of  contest  on  contestee  on  December  8,  1880,  and  contestee 
filed  his  answer  on  January  5,  1881.  On  February  1,  1881,  contestant  commenced 
taking  testimony  and  took  the  depositions  of  eight  witnesses,  all  apparently  on 
the  same  day.  No  other  witnesses  appear  to  have  been  examined  for  contestant. 
On  March  3,  1881,  contestee  took  the  depositions  of  witnesses  in  reply.  This  was 
all  the  evidence  adduced,  except  some  certificates. 

In  January,  1882,  the  clerk  of  the  Committee  on  Elections  served  on  contestant  notice 
to  file  his  brief.  On  the  day  designated  for  filing  the  brief,  contestant's  attorney 
appeared  before  the  committee  and  applied  for  one  week  more  in  which  to  file 
same,  which  was  granted ;  and  at  the  expiration  of  that  time  contestant  appeared 
and  applied  for  further  time  in  which  to  take  further  testimony,  and  filed  an  affi- 
davit in  support  thereof.  This  motion  was  denied  for  reasons  stated.  After- 
wards contestant  filed  a  supplemental  affidavit  covering  some  of  the  objections 
pointed  to  the  former. 

Held,  That  the  application  came  too  late ;  that  parties  should  be  bound  by  a  reasonable 
degree  of  diligence  ;  that  it  would  be  dangerous  to  establish  a  precedent  allowing 
parties  to  contests  after  submitting  their  case  to  ascertain  the  grounds  upon  which 
he  had  been  overruled,  and  to  then  supplement  his  application  by  a  new  affida- 
vit, avoiding  the  decision,  and  thus  open  up  the  case  again. 

The  House  adopted  the  majority  report. 


April  7,  1882. — ^Mr.  Calkins,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

BE  POET: 

The  Committee  on  Elections,  to  whom  was  referred  the  above-entitled  con- 
tested-election case,  liave  had  the  same  under  consideration,  and  beg  leave 
to  maJce  the  following  report  : 

The  case  was  referred  by  the  full  committee  to  a  subcommittee  to 
read  the  proofs  and  hear  the  arguments  and  make  a  report  thereon. 
Mr.  Atherton,  from  the  subcommittee,  made  the  following  report  to  the 
full  committee,  viz  : 

MABSON  vs.  OATES. 

The  subcommittee  on  Elections,  to  whom  was  referred  the  matter  of  the  contest  of  A.  A.  Mab- 
son  vs.  W.  C.  Oatts,  of  third  district  of  Alabama,  submit  the  following  report : 

W.  C.  Oates  and  A.  A.  Mabson  were  opposing  candidates  for  a  seat  in  the  Forty- 
seventh  Congress  from  the  third  Congressional  district  of  Alabama  at  the  November 
election,  A.  D.  1880. 

By  the  returns  of  said  election,  as  certified  to  the  secretary  of  state,  Mr.  Oates  re- 
ceived 10,614  votes  and  Mr.  Mabson  received  5,636  votes,  leaving  a  majority  for  the 
former  of  4.988. 

On  the  fcih  day  of  December,  A.  D.  1880,  Mr.  Mabson  caused  to  be  served  on  Mr. 
Oates  notice  of  his  intention  to  contest  said  election. 

In  said  notice  said  contestant  specified  as  the  grounds  of  contest,  substantially,  that 
in  certain  precincts  particularly  named,  in  the  counties  of  Lee,  Barbour,   Kussell, 


MABSON    VS.    GATES.  9 

<^^ 
Henry,  Coffee,  Dale,       \  Geneva,  in  said  district,  the  inspectors  of  election  willfully 

and  fraudulently  niaa^  Ise  statements  as  to  the  result  of  said  election,  returning  for 
the  contestant  a  much  .  jss,  and  for  the  contestee  a  much  greater,  number  of  votes 
than  they  respectively  received;  that  iu  one  precinct  (named)  the  inspectors  refused 
to  open  the  polls  and  hold  an  election,  and,  acting  in  concert  with  evil-disposed  per- 
sons, by  fraudulent  representations,  threats  of  violence,  and  of  criminal  prosecutions, 
prevented  other  persons  from  opening  the  polls  and  carrying  on  an  election,  whereby 
a  large  number  of  persons  who  desired  to  vote  for  contestant  were  prevented  from  ex- 
ercising the  right ;  that  the  canvassing  officers  improperly  rejected  the  returns  of  cer- 
tain precincts  by  reason  of  alleged  informalities  in  the  returns,  and  that  the  votes  so 
unlawfully  returned  and  manipulated  were  tabulated  and  included  in  the  estimate 
bv.the  canvassing  officers,  and  formed  a  part  of  the  vote  upon  which  the  secretary  of 
state  found,  ascertained,  and  certified  to  the  election  of  contestee. 

He  also  alleged  that  the  board  of  officers,  consisting  of  the  judge  of  probate,  sheriff, 
and  clerk  of  the  circuit  court  in  said  counties  (except  in  three  precincts),  fraudu- 
lently, and  for  the  purpose  of  giving  the  contestee  an  undue  advantage,  appointed  in- 
spectors of  elections  from  the  party  to  which  the  contestee  belonged  only,  and  refused 
to  appoint  any  of  the  same  (except  as  aforesaid)  from  the  opposite  party. 

That  but  for  the  fraud,  intimidation,  and  misconduct  aforesaid,  the  majority  of  the 
contestant  would  have  been  '2,500  over  the  contestee. 

On  the  5th  day  of  January,  A.  D.  1881,  the  contestee  filed  an  answer  to  said  notice- 
denying  generally  the  allegations  thereof;  and  specifically  denying  that  lawful  votes 
given  for  the  contestant  had  not  been  counted  for  him,  or  that  votes  not  given  for  con- 
testee had  been  counted  for  him :  admitting  that  no  election  had  been  held  in  the 
precinct  complained  of,  but  denying  that  the  omission  had  been  the  result  of  any 
intention  to  injure  the  contestant ;  admittingthat  the  board  charged  with  the  duty  of 
appointing  inspectors  were  members  of  the  same  political  party  with  contestee,  but 
denying  that  they  acted  dishonestly,  or  contrary  to  law,  and  averring  that  they 
honestly  and  property  exercised  their  power  of  appointment,  and  did  in  ftict  appoint 
inspectors  from  all  political  parties  when  ^iracticable  so  to  do. 

Contestee  avers  that  his  majority  was  5,000  over  contestant,  and  that  the  latter  ad- 
mitted he  was  not  elected. 

These  were  the  substantial  issues  joined  between  the  parties,  and  on  the  Ist  day  of 
February,  1881,  or  nearly  four  weeks  after  the  answer  was  filed,  contestant  commenced 
taking  testimony  before  the  probate  judge  of  Lee  County,  Alabama,  and  took  the  tes- 
timony of  eight  witnesses,  relating  to  the  election  in  certain  precincts  in  that  county. 
All  of  the  witnesses  appear  to  have  been  examined  on  the  same  day  ;  at  least  no  con- 
tinuances are  noted  by  the  officer.  No  other  witnesses  appear  to  have  been  examined 
for  contestant ;  and  on  the  3d  day  of  March,  A.  D.  1881,  the  contestee  took  the  evi- 
dence of  certain  witnesses  in  reply,  relating  to  the  election  in  the  same  precincts. 

The  only  other  evidence  adduced  in  addition  to  the  above  consisted  of  the  certifi- 
cates of  certain  persons  purporting  to 'be  supervisors  of  election  for  that  district,  but 
the  record  fails  to  disclose  who  offered  same,  or  how  the  certificates  got  into  the 
report. 

But  how  they  got  in,  or  whether  these  certificates  of  the  supervisors  of  election  are 
to  be  received  as  evidence,  is  immaterial  in  the  view  taken  of  the  case  by  the  com- 
mittee. 

The  case  stood  iu  this  condition  until  the  —  day  of  January,  A.  D.  1882,  when  the 
clerk  of  the  committee  served  on  contestant  notice  to  file  a  brief  of  his  argument 

herein  on  the  —  day  of ,  A.  D.  1882.     On  that  day  his  attorney  appeared  before 

the  committee  on  .his  behalf,  and  made  an  application  to  continue  the  case  for  one 
week  longer,  which  was  granted,  and  at  the  expiration  of  the  time  the  contestant, 
with  his  attorney,  appeared  before  the  committee  and  made  an  application  orally  that 
time  be  granted  the  contestant  to  take  further  testimony,  or  that  the  committee  would 
recommend  to  the  House  the  appointment  of  a  commission  to  proceed  to  the  third  dis- 
trict of  Alabama,  and  investigate  the  matters  alleged  in  the  notice  of  contest,  and 
accompanied  said  oral  request  with  an  affidavit  of  the  contestant  in  support  thereof, 
stating  that  he  was  in  Washington,  D.  C,  from  the  opening  of  the  session  until  the 
holiday  recess;  that  he  was  appointed  a  master  in  chancery  by  the  circuit  court  of 
the  United  States,  which  commenced  its  session  in  Mobile,  January  10,  1882,  and  had 
to  be  there  at  the  time  ;  that  shortly  thereafter  he  got  sick,  went  to  Union  Springs, 
did  not  return  to  Mobile  till  January  30,  1882,  and  did  not  believe  the  case  would  be 
taken  up  by  the  committee  until  the  testimony  was  printed ;  that  he  had  used  due 
diligence  to  take  his  testimony  in  the  case  in  time,  but  could  not  for  the  reason  that 
no  register  in  bankruptcy,  or  judge  of  a  United  States  court,  resided  in  the  district, 
and  that  he  had  to  rely  on  Stare  officials,  who  all  belonged  to  the  same  political  party 
with  contestee,  and  all  of  them  were  unfriendly  to  him  and  to  his  contest,  because 
they  all  had  been  elected  by  the  same  unlawful  methods  that  had  seated  the  contestee" 
and  defeated  the  contestant ;  that  he  had  subpojuaed  200  witnesses  before  H.  H.  Smith, 
a  notary  public,  and  that  they  had  been  examined,  and  the  deposition  were  withheld; 


10  DIGEST    OF    ELECTION    CASES. 

that  he  owed  $15  thereon  and  had  ^aid  $45,  and  that  Smith  had  agreed  to  forward 
them  without  further  payment,  and  that  contestant  was  ignorant  of  the  reason  why 
they  were  not  forwarded, 

Tliat  on  June  20,  18dl,  he  subpoenaed  250  witnesses  before  W.  A.  Baldwin,  mayor  of 
Union  Springs,  and  that,  the  point  being  made,  Baldwin  refused  to  take  the  deposi- 
tions, because  he  was  a  relative  of  contestant ;  that  he  did  not  take  further  testimony, 
because  he  thought  he  could  procure  no  officer  to  take  them  that  would  be  even  as 
favorable  to  him  as  Baldwin  ;  that  contestant  made  application  to  the  probate  judge 
of  Bullock  County  to  take  testimony,  but  that  he  refused  to  do  so,  because  he  was 
elected  to  office  by  the  same  unfair  methods  that  defeated  contestant.  He  further 
alleged  tljat  after  his  time  for  taking  testimony  had  expired,  and  on  February  28, 
1881,  he  applied  to  the  probate  judge  of  Enssell  County  to  take  his  depositions,  and 
that  he  refused  because  the  time  had  expired ;  that  the  time  alloAved  by  the  statutes 
for  taking  depositions  was  totally  inadequate  ;  that  it  was  necessary  to  examine  at 
least  1,000  witnesses  to  show  how  the  electors  voted. 

That  it  would  appear,  by  a  report  of  the  Senate  Committee  on  Privileges  and  Elec- 
tions of  the  Forty-third  Congress  that  the  elections  in  said  State  were  tainted  with 
fraud  and  unfairness ;  that  the  same  state  of  things  continued  and  existed  at  the  elec- 
tion of  November  2,  1880,  as  an  investigation  of  said  election  would  fully  show. 

The  first  question  presented  for  consideration  is  the  preliminary  one  of  granting 
time  to  the  contestant  to  take  further  testimony,  or  of  appointing  a  commission  to 
take  the  same. 

Touching  the  first  proposition,  has  the  contestant  shown  such  degree  of  diligence 
as  to  induce  the  House,  under  well-established  precedents,  to  grant  an  extension  of 
time ;  or  has  he  been  guilty  of  such  want  of  diligence  that  his  application  should  be 
denied?  In  the  report  of  the  contested-election  case  of  Boles  vs.  Edwards,  prepared 
by  Mr.  Hazelton,  it  is  said : 

"To  say  nothing  of  the  terms  of  the  law  »  *  *  touching  the  extending  of  the 
time  fixed  to  allow  supplementary  evidence,  which  clearly  relates  to  cases  in  which  the 
applicant  has  taken  some  evidence,  that  is  to  say,  has  made  some  use  of  the  time 
given  him,  the  policy  of  the  House  has  been  adverse  to  granting  extensions.  Procras- 
tination in  these  cases  diminishes  the  object  of  investigation,  and  cheapens  the  value 
of  the  final  decision.  The  law  is  intended  to  furnish  ample  opportunity  for  taking 
testimony.  Parties  should  be  held  to  a  rigid  rule  of  diligence  under  it,  and  no  exten- 
sion ought  to  be  allowed  where  there  is  reason  to  believe  that  had  the  applicant 
brought  himself  within  such  rule  there  would  have  been  no  occasion  for  the  applica- 
tion."    (Smith's  Cont.  El.  Cas.,  18.) 

In  Giddings  i'«.  Clark  the  Committee  on  Elections,  in  a  report  prepared  by  Mr.  Mc- 
Crary  (among  other  things),  say: 

"That  no  such  extension  should  ever  be  granted  to  a  sitting  member  unless  it  ap- 
pears that  by  the  exercise  of  great  diligence  he  has  been  unable  to  procure  his  testi- 
mony, and  that  he  is  able,  if  an  extension  be  granted,  to  obtain  such  material  evi- 
dence as  will  establish  his  right  to  the  seat,  or  that  by  reason  of  the  fault  or  miscon- 
duct of  the  contestant  he  has  been  unable  to  prepare  his  case."  (Smith's  Cont.  El. 
Cas.,  92-3.) 

In  the  contested-election  case  of  Vallandigham  vs.  Campbell  it  was  held : 

"That  the  fact  that  the  sitting  member  was  a  member  of  the  previous  Congress,  and 
attended  to  his  duties  as  such  during  a  part  of  the  time  when  by  law  the  testimony 
should  be  taken,  furnishes  no  reason  why  further  time  should  be  granted."  (1  Bart- 
lett,  p.  223.) 

As  to  rule  that  great  diligence  is  required  to  be  proved  to  entitle  the  party  to  aa 
extension  of  time,  see  the  case  of  Howard  vs.  Cooper.    (1  Bartlett,  p.  275.) 

Is  diligence,  within  the  rule,  shown  by  contestant!  He  allowed  almost  a  month 
to  elapse  after  the  answer  was  served  before  he  took  any  depositions.  He  applied  to 
an  officer  or  two  to  take  his  deposition,  who  refused  to  act,  and  he  neither  tried  to 
procure  others,  nor  to  have  an  officer  of  his  own  political  party  appointed  by  Federal 
authority.  He  went  away  from  Washington  to  attend  to  affairs  not  so  important  as 
his  contest,  and  left  the  same  for  a  considerable  time,  without  giving  attention 
thereto.  Were  it  necessary  to  put  the  refusal  to  grant  an  extension  on  that  ground, 
the  committee  believe  that  the  contestant  has  been  guilty  of  such  laches  as  to  pre- 
clude him  from  the  right  to  take  further  testimony. 

But  in  order  to  entitle  himself  to  ap  extension  of  time  after  taking  testimony,  the 
contestant  must  state  what  witnesses  he  desires  to  examine,  give  their  names,  their 
residence,  and  what  they  will  swear  to,  or  a  sufficient  reason  why  the  same  is  not 
done.    In  the  language  of  the  able  report  in  Giddings  vs.  Clark,  1  Bartlett,  91-94 : 

"The  affidavits  relied  on  are  fatally  defective  in  this,  that  they  do  not  state  the 
names  of  the  witnesses  whose  testimony  is  wanted,  nor  the  particular  facts  which  can 
be  proved  by  their  testimony." 

It  is  also  laid  down  as  a  rule,  in  the  same  case,  that  an  applicant  "should  produce 
the  affidavit  of  some  of  the  witnesses  themselves  '  *  *  stating  what  facts  are 
within  their  own  knowledge."     (Same,  p.  93.) 


MABSON   VS.    GATES.  11 

But  in  this  case  the  afiSant  makes  general  statements,  alleges  facts  not  within  his 
pei"8onal  knowledge,  does  not  state  the  names  of  witnesses,  their  residence,  or  what 
particular  facts  he  proposes  to  prove  by  any  of  them.  He  alleges  fraud  and  unfair- 
ness in  general  terms,  and  does  not  preterul  it  is  the  same  fraud  alleged  in  his  notice 
of  contest,  and  the  committee  think  that  the  affidavit  is  fatally  defective,  and  no  ex- 
tension should  be  granted  by  reason  of  anything  therein  stated. 

The  report  of  the  Senate  Committee  on  Privileges  and  Elections  in  the  Forty-third 
Congress  is  not  evidence.     It  relates  to  a  period  long  anterior  to  1880. 

It  is  not  a  judicial  determination,  and  is  not  to  be  considered  in  determining  the 
application. 

In  Boles  vs.  Edwards,  Smith  El.  Cas.,  58,  the  contestee  submitted  in  evidence  the 
report  of  a  joint  select  committee,  appointed  by  the  senate  and  house  of  representa- 
tives of  Arkansas  to  investigate  election  frauds,  and  it  was  rejected  as  simply  "views 
of  certain  members  of  the  legislature  of  Arkansas."  So  this  report,  if  it  related  to 
the  very  election  in  question,  would  be  simply  the  views  of  certain  members  of  the 
Senate  of  the  United  States,  and  could  not  bind  the  House  or  furnish  evidence  for  its 
consideration.  It  would  be  to  us  simply  hearsay  and  inadmissible,  as  laid  down  in 
the  report  of  Speaker  Keifer  in  the  case  of  Donnelly  V8.  Washburn,  in  the  Forty-sixth 
Congress. 

The  eommittee  concede  the  right  of  the  House  to  investigate  the  title  of  Gates  to  a 
seat,  even  if  Mabson  has  been  guilty  of  such  negligence  and  laches  as  to  preclude  him 
from  contesting  for  the  seat,  as  a  party  and  litigant.  But  does  his  affidavit  make  a  case 
calling  on  the  House  to  institute  an  inquiry  and  investigation  for  its  own  vindication,^ 
or  to  purge  itself  of  a  member  unelected,  in  fact  ? 

The  charges  of  fraud  and  illegality  are  general.  At  what  precincts  committed,  or  in 
what  counties  even,  is  not  alleged.  Gf  what  particular  acts  they  consisted  is  not 
stated.  No  witness  is  named  who  will  furnish  testimony  of  particular  acts.  In  fact, 
no  witnesses  are  named  at  all. 

The  committee  are  not  put  in  possession  of  a  single  fact  of  fraud  or  illegality,  or 
furnished  with  the  medium  of  evidence  by  which  the  same  may  even  seem  susceptible 
of  proof.  No  case  is  therefore  made  for  invoking  the  jurisdiction  of  the  House  to  in- 
vestigate in  order  to  protect  its  own  rights  and  dignity. 

The  application  for  extension  of  time  being  disposed  of,  the  question  recurs  as  to 
the  final  disposition  to  be  made  of  the  case.  In  the  presence  of  contestant  the  com- 
mittee proposed  to  allow  sufficient  time  to  enable  the  testimony  already  taken  to  be 
placed  on  lile  if  it  was  claimed  by  him  that  its  presence  might  change  the  result ;  but 
it  was  admitted  by  him  that  the  testimony  aforesaid,  in  addition  to  the  evidence  on 
file,  would  not  overcome  or  materially  change  the  majority  for  the  sitting  member, 
and  the  committee  therefore  deemed  it  unnecessary  to  delay  in  order  to  put  the  same 
on  file. 

And  it  being  conceded  by  contestant  and  found  by  the  committee  that  the  evidence 
now  before  it  shows  a  large  majority  for  Gates,  the  sitting  member,  we  therefore  re- 
port the  following  resolution : 

Besolved,  That  W.  C.  Gates,  the  sitting  member,  was  duly  elected,  and  is  entitled  to 
the  seat  occupied  by  him  in  this  House  as  the  Representative  from  the  third  district 
of  Alabama  in  the  Forty-seventh  Congress. 

After  this  report  had  been  made  and  submitted,  the  contestant  filed 
a  supplemental  affidavit,  covering  some  of  the  objections  poiuted  out  in 
the  report  to  his  former  application,  and  asking  for  further  time  to  take 
testimony  in  the  district. 

The  affidavit  haviug  been  read  to  the  full  committee,  it  was  held  by  a 
majority  thereof  that  the  application  came  too  late;  that  it  would  be 
dangerous  to  establish  a  precedent  allowing  a  contestant  or  contestee, 
after  finally  submittifig  tbeir  cases,  to  ascertain  from  the  report  of  the 
committee  the  grounds  upon  which  he  had  been  overruled,  and  to  then 
supplement  his  application  by  a  new  affidavit,  avoiding  the  decision^ 
and  thus  open  up  the  case  again.  Such  a  practice  your  committee 
think  would  lead  to  interminable  delays,  and  would  transform  the  com- 
mittee into  mere  advisers  of  the  parties.  The  committee  are  of  opinion 
that  parties  should  be  bound  by  a  reasonable  degree  of  diligence,  and 
that  there  should  be  a  time  fixed  beyond  which  the  doors  for  the  recep- 
tion of  ex  parte  affidavits  or  evidence  should  be  shut.  Inasmuch  as  there 
was  no  application  to  file  additional  affidavits  before  the  subcommittee 
until  after  its  report  was  made,  the  committee  are  of  opinion  the  last  affi- 
davit came  too  late,  and  should  not  be  considered. 


12  DIGEST    OF    ELECTION    CASES. 

Some  doubts  exist  iu  the  minds  of  the  majority  of  your  committee 
about  the  form  of  a  resolution  which  should  be  reported  in  this  case  for 
adoption  by  the  House.  It  is  unnecessary  to  state  the  reasons  of  this 
diversity  of  opinion.  In  order  that* the  case  may  speedily  be  disposed 
of  without  prejudice  to  any  one,  a  majority  of  the  committee  report  the 
following  resolution  for  adoption  by  the  House : 

Resolved,  That  contestant,  A.  A.  Mabson,  have  leave  to  withdraw  his 
papers  without  prejudice. 


VIEWS  OF  THE  MINORITY. 

In  the  matter  of  contest  between  A.  A.  Mabson  and  W.  C.  Gates,  from 

the  State  of  Alabama. 

House  of  Representatives, 

Washington,  D.  C,  March,  1882. 

Tlie  undersigned,  members  of  the  Committee  on  Elections,  make  the  follow- 
ing minority  report : 

It  is  admitted  thatthe  contestant  herein  gave  the  proper  notice  of  con- 
test, and  within  the  time  prescribed  by  law  ;  and  that  contestee,  also, 
within  the  time  required,  filed  his  reply  thereto,  putting  in  issue  all 
the  material  allegations  contained  and  charged  in  said  notice  of  con- 
test ;  all  of  which  will  be  found  fully  set  forth  in  the  majority  report 
herein,  and  the  minority  do  not  herein  repeat  the  record.  It  also  fully 
appears  from  the  evidence  that  contestant  proceeded  to  take  testimony 
in  the  matter,  and  did  succeed  in  taking  considerable  evidence,  and 
endeavored  to  take  additional  evidence,  but,  for  reasons  hereinafter  set 
forth,  failed  to  procure  the  same. 

Contestant  filed  an  affidavit  and  motion  that  he  be  granted  further 
time  to  take  evidence ;  in  which  affidavit  he  set  forth  the  reasons  for 
such  motion  and  the  diligence  which  he  had  used  to  procure  the  same. 
It  was  found  by  a  part  of  the  committee  that  the  showing  was  insuffi- 
cient, but  before  the  report  was  agreed  upon,  and  now  returned  by  the 
majority  of  the  committee,  contestant  filed  another  affidavit,  substan- 
tially the  same  as  the  first,  but  more  in  detail.  This  was  not  received 
by  the  majority,  and  further  time  refused,  notwithstanding  the  fact 
that  contestant  offered  to  take  the  evidence  at  his  own  expense. 

The  minority  cannot  agree  with  the  majority  of  the  committee  in  this 
action,  as  we  believe  that  contestant  used  due  diligence  iu  endeavoring 
to  procure  his  evidence  in  time,  and  it  is  shown  that  he  was  prevented 
from  so  doing  without  fault  or  neglect  on  his  part,  and  that  justice  to 
contestant,  as  well  as  to  the  contestee,  and  all  others  in  the  district  for 
which  the  contest  is  made,  and  against  whom  charges  of  fraud  and 
wrong  are  made,  demands  that  a  full  investigation  be  had ;  and  if  the 
charges  were  sustained,  contestant  should  have  his  rights ;  and  if  found 
untrue,  he  should  find  no  recognition  here ;  but  truth  should  be  known 
through  the  investigation  demanded,  and  we  make  especial  reference 
to  the  affidavit  of  contestant,  hereto  attached  and  made  a  part  of  this 
report,  said  affidavit  being  the  same  submitted  to  the  committee,  and  by 
a  majority  found  insufficient.  • 

And  in  view  of  the  facts  the  minority  submit  this  report,  and  ask 
that  the  following  resolution  be  adopted : 


MABSON    VS.    GATES.  13 

Resolved,  That  A .  A.  Mabson  be  allowed  further  time,  not  exceeding^ 
forty  days,  to  take,  at  his  own  expense,  such  evidence  in  support  of  his 
said  notice  of  contest  as  he  may  desire,  and  that  contestee  shall  have 
thirty  days  thereafter  to  take  such  evidence  as  he  may  deem  proper  in 
rebuttal. 

WM    G.  THOMPSON. 

A.  H.  PETTIBONE. 

S.  H.  MILLER. 

JOHN  PAUL., 

r.  JACOBS,  Jr. 

GEO.  C.  HAZELTON. 


Washington  City, 

Diairict  of  Columbia : 

Algernon  A.  Mabson,  being  duly  sworn,  deposes  and  says  that  he  is  the  contestant; 
in  the  contested'election  ca^e  of  A.  A.  Mabson  against  W.  C.  Gates,  from  the  third 
Congressional  district  of  Alabama,  now  pending  in  the  Forty-seventh  Congress. 

That  in  support  of  his  motion  for  further  time  in  which  to  take  testimony  in  said 
election  case,  which  he  is  advised  that  his  counsel  heretofore  made  before  the  Com- 
mittee on  Elections  of  the  House  of  Representatives,  he  says  that  he  was  prevented 
from  sooner  making  this  statement  because  of  enforced  and  unavoidable  absence  from 
the  city  of  Washington  ;  that  he  was  in  Washington  during  the  present  session  of  Con- 
gress until  its  recess,  and  then  he  was  compelled  to  return  to  Alabama,  to  the  city  of 
Mobile,  in  order  to  be  present  at  a  session  of  the  circuit  court  of  the  United  States, 
which  commenced  in  that  city  on  the  10th  day  of  the  last  month ;  that  he  had  been 
appointed,  or  rather  was  notified  by  the  circuit  judge  that  he  would  be  appointed,  in 
open  court,  general  master  in  chancery  of  the  court,  and  special  master  in  chancery  of 
the  Mobile  and  Ghio  Railroad,  and  was  required  to  be  present  at  the  beginning  of  the 
session  in  order  to  receive  his  appointment,  &c.  ;  that  he  was  soon  relieved  from  the 
necessity  of  attending  on  the  court,  when  he  was  attacked  by  sickness,  viz,  pneumonia, 
and  was  by  his  illness  precluded  from  traveling ;  that  his  counsel  notified  him,  by 
letter  of  date  the  19th  of  January,  of  the  necessity  of  his  appearing  and  acting  in  this- 
case,  but  he  had  left  Mobile  before  the  arrival  of  the  letter,  being  called  to  his  home 
in  Union  Springs  by  the  serious  illness  and  expected  death  of  one  of  his  children,  and 
therefore  did  not  receive  thi,s  notification  until  he  stopped  in  Mobile  on  Monday  last, 
the  30th  of  January,  when  he  had  returned  to  Mobile  from  Union  Springs ;  that  he  did 
not  believe  action  would  be  taken  by  the  committee  in  this  case  until  the  testimony  in 
the  case  had  been  printed,  and  believed  he  could  be  in  Mobile  on  the  10th  of  lasl^ 
month,  and  remain  there  two  or  three  days,  and  return  to  Washington  in  due  time, 
and  would  have  done  so  had  he  not  been  prevented  by  illness  from  so  doing ;  that  he 
arrived  in  Washington  at  3  o'clock  p.  m.  this  2d  day  of  February. 

Deponent  avers  that  he  used  due  diligence  in  taking  testimony,  and  having  the  same 
taken,  during  the  time  allowed  him  by  law  in  which  to  take  the  same,  and  that  it  was. 
impossible  for  him,  for  the  reasons  hereinafter  stated,  by  the  use  of  due  diligence,  to 
have  taken  said  testimony  during  said  time. 

With  the  single  exception  of  registers  in  bankruptcy  and  judges  of  the  United  Stat** 
court,  the  only  officers  before  whom  his  testimony  could  be  taken  were  officers  under 
the  laws  of  the  State  of  Alabama,  and  as  neither  a  register  of  bankruptcy  or  judge  of 
a  United  States  court  resided  in  his  Congressional  district,  he  was  compelled  to  rely 
entirely  upon  the  State  officers  before  whom  to  have  witnesses  examined  in  his  behalf;, 
that  the  State  officers,  for  reasons  hereinafter  related,  are  all  members  of  the  political 
party  to  which  contestee  belongs,  viz,  the  Democratic,  and  are  all  opposed  to  affiant 
and  inimical  to  his  contest,  and  favorable  to  the  contestee. 

They  are  also  opposed  to  the  proving  by  testimony  before  any  tribunal  of  the  fraud- 
ulent and  illegal  practices  alleged  in  affiant's  notice  of  contest,  because  they  favor  the 
same,  and  were,  as  will  be  hereinafter  shown,  elected  to  their  respective  offices  by  th& 
fraudulent  aud  illegal  stuffing  of  ballot-boxes,  and  other  unlawful  and  fraudulent  meth- 
ods that  are  alleged  in  affianVa  notice  of  contest  to  have  been  practiced  in  the  pretended 
election  of  contestee.  Affiant  therefore  met  with  difficulties  aud  embarrassment  oa 
every  hand  in  attempting  to  find  persons  before  whom  his  testimony  could  be  prop- 
erly taken. 

Affiant  avers  that  he  duly  served  notice  and  had  subpoenaed  to  be  examined  in  his 
behalf  about  two  hundred  witnesses,  before  H.  H.  Smith,  a  notary  public  at  Ridgley, 
in  Bullock  County,  and  the  same  were  duly  examined,  but  the  said  testimony  has  not 
been  forwarded  to  the  Clerk  of  the  House  of  Representatives  by  the  said  H.  H.  Smith, 


14  DIGEST    OF    ELECTION    CASES 

and  is  not  now  before  the  committee ;  and  affiant  avers,  and  so  charges,  that  the  said 
testimony  was  withheld  by  reason  of  conspiracy  and  collusion  between  said  Smith 
and  contestee  or  persons  acting  in  his  behalf;  that  he  spoke  to  said  Smith  about  for- 
warding the  testimony  after  the  same  had  been  concluded,  and  the  said  Smith  made 
BO  objection  thereto  and  made  no  demand  for  payment  of  any  sum  of  money  as  a  pre- 
requisite to  his  forwarding  the  same.  That  he  paid  the  said  Smith  about  forty-five 
dollars  for  said  service,  and  still  owes  him  about  fifteen  dollars,  but,  as  before  stated, 
the  said  Smith  never  required  that  this  latter  sum  should  be  paid  before  forwarding 
the  testimony,  and  though  affiant  has  conversed  with  the  said  Smith  several  times 
since  taking  the  testimony,  he  never  gave  affiant  to  know  that  the  testimony  had  not 
been  forwarded  as  by  law  required,  or  made  demand  for  the  balance  due,  but  on  the 
contrary  cdhsented  to  forward  the  same  without  prepayment  thereof.  Affiant  cannot 
now  give  the  names  of  the  witnesses  examined  as  aforesaid,  because  the  notice  in 
which  they  are  contained  was  delivered  to  the  said  Smith  to  be  forwarded  with  the 
testimony. 

Affiant  avers  that  before  W.  O.  Baldwin,  mayor  of  Union  Springs,  in  Bullock  County, 
there  were  regularly  subpoenaed  and  in  attendance  to  be  examined  in  his  behalf,  on  the 
20th  day  of  January,  1881,  two  hundred  and  fifty  witnesses;  that  he  duly  appeared 
before  said  Baldwin  with  his  said  witnesses  at  the  time  uauied,  and  demanded  that 
the  examination  should  proceed ;  that  a  number  of  lawyers,  appearing  for  said  con- 
testee, insisted  before  said  Baldwin  that  he  had  no  power  to  take  said  testimony,  be- 
cause he  was  a  relative  of  contestant,  he  being,  in  fact,  the  cousin  of  contestant's 
■wife;  that  contestant  insisted  that  the  examination  should  proceed,  and  that  the 
House  of  Representatives  might  pass  upon  its  legality  ;  but  the  said  Baldwin,  being 
in  sympathy  with  contestee,  and  favoring  the  fraudulent  and  illegal  practice  by  which 
contestee  was  made  to  receive  his  certificat.?  of  electiou,  and  iuimical  to  the  contest- 
ant, and  with  a  design  to  embarrass  and  obstruct  contestant,  refused  to  take  the  said 
testimony  because  he  was  the  cousin  of  contestant's  wife,  upon  objection  for  this  rea- 
son alone,  made  as  aforesaid  by  the  attorneys  for  contestee;  and  affiant  avers  that  no 
officers  under  the  latoa  of  the  State  of  Alabama,  in  said  county,  competent  1o  take  said  ttsti- 
mony  could  he  found  by  him  whom  he  tvould  hare  reasonable  ground  to  belli  ve  tcould  be  as 
reasonable  and  fair  in  taking  testimony  in  his  behalf  as  the  said  Baldwin;  and  affiant  avers 
that  the  time  and  expense  arid  labor  of  summoning  and  preparing  to  examine  and  causing  the 
cttendance  of  witnesses  were  without  avail  to  him,  for  the  reason  aforesaid.  Affiant  made 
application  to  the  judge  of  probate  of  Bullock  County,  I.  B.  Feagin,  to  take  his  tcsti- 
mony,  but  the  said  Feagin,  being  in  sympathy  with  the  frauds  committed  in  behalf 
of  said  votes,  refused  to  take  the  testimony  for  affiant,  he,  the  said  Feagin,  haviug 
■obtained  his  office  in  the  same  way  that  contestee  obtained  his  seat  in  this  Congress, 
in  this,  that  thi)ugh  the  said  Feagin  was  actually  defeated  in  the  election  in  which  he  was  a 
■candidate  for  probate  judge  by  more  than  two  thousand  votes  majority  actually  received  by 
Ms  opponent,  yet  by  the  same  fraudulent  practices  charged  by  me  to  have  occurred 
in  my  election  he  was  declared  elected,  and  now  holds  the  office. 

Though  affiant's  forty  days  had  expired  he  still  persisted  in  trying  to  take  testi- 
mony, in  order  that  this  honorable  committee  might  be  made  to  know,  as  far  as  lay  in 
his  power  to  enable  them  to  learn  by  legal  proof,  the  merits  of  his  contest,  and  to  sus- 
tain his  application  for  further  time  in  which  to  take  testimony,  and  for  this  reason 
before  Simeon  O' Neil,  judge  of  probate  of  Russell  County,  affiant  having  duly  served  notice 
upon  contestee,  and  the  said  O'Neil  having  agreed  to  take  his  testimony,  had  in  attendance  be- 
fore him,  on,  to  icit,  February  28,  1881,  a  large  number  of  witnesses,  but  the  said  O'Neil, 
■against  the  protest  and  objections  of  affiant,  refused  to  examine  said  witnesses,  after  having 
issued  and  served  subpoenas  for  said  witnesses  at  expense  of  affiant. 

Affiant  avers  that  in  taking  histestimony  he  tried  to  obtain  the  services  of  one  Ja»i«« 
B.  Powell,  of  Union  Springs,  Alabama,  he  Ijeing  a  Democrat  in  politics  and  there  being 
no  Republican  lawyers  in  his  district;  that  he  did  retain  said  Powell,  who  agreed  to 
appear  for  him,  but  that  when  the  examiuation  of  his  witnesses  had  commenced  be- 
fore H.  H.  Smith,  as  aforesaid,  the  said  Powell  annouuced  that  he  appeared  for  con- 
testee; this  notwithstanding  that  contestee  had  other  attorneys,  as  in  fact  all  the 
attorneys  present  wherever  affiunt  attempted  to  take  testimony  rendered  services  for  said 
contestee  ;  and  affiant  avers  that  the  said  Oates  induced  the  said  Powell  to  refuse  to  ap- 
pear for  him  wholly  for  the  purpose  of  embarrassing  and  obstructing  the  said  affiant 
in  the  taking  of  his  testimony.  Affiant  was  therefore  compelled  to  take  his  testimony 
without  the  assistance  of  a  lawyer. 

Affiant  submits  that  the  time,  forty  days,  allowed  him  in  which  to  take  his  testi- 
mony was  wholly  inadequate,  and  that  the  time  was  not  tixed  in  contemplation  that 
•cases  of  the  character  of  his  could  or  would  exist.  In  this  forty  days  are  included 
about  six  Sundays,  leaving  affiant  only  thirty-four  working  days.  His  charges  of 
fraudulent  miscounting,  or  failing  to  count  his  votes,  or  counting  votes  cast  for  him 
for  contestee,  or  the  fraudulent  refusing  to  count  his  votes  by  the  county  supervisors 
•of  election,  involve  the  necessity  of  examining  the  witnesses  in  24  precincts  of  this  dis- 
trict, to  wit,  4  in  Lee  County,  4  in  Russell,  6  in  Bullock,  5  in  Henry,  aud5  in  Barbour ; 


MABSON   VS.    GATES.  15 

that  the  said  district  is  very  large,  having  an  area  of  5,740  square  miles,  being  127  miles 
iu  length,  and  means  of  communication  between  its  dilfereut  parts  very  circuitous,  it 
being  supplied  with  no  direct  railway  connections.  For  example,  to  go  from  Abbe- 
ville, in  Henry  County,  to  Opelika,  in  Lee  County,  would  require  about  48  hours  by 
the  must  expeditious  mode  of  travel. 

In  all  of  these  precincts,  except  in  the  three  as  stated  in  his  notice  of  contest,  the 
county  supervisors  of  election  had  appointed  only  Democratic  managers  of  the  elec- 
tion, with  the  fraudulent  intent  of  preventing  a  fair  election,  as  adiaut  upon  oath 
states,  so  that  the  party  to  which  affiant  belodgs  had  no  representative  at  the  several 
voting  precincts  throughout  his  district  to  see  thai  the  elections  in  the  several  pre- 
cincts were  honestly  and  lawfully  conducted.  Affiant  avers,  of  his  own  knowledge, 
that  a  member  of  the  Republican  party,  fully  competeut,  could  be  found  in  every  pre- 
cinct of  his  district  to  act  as  a  manager  of  election.  Therefore  affiant  is  compelled 
to  prove  his  allegations  in  his  notice  of  contest  by  examining  persons  who  took  down, 
as  far  as  practicable,  the  names  of  the  persons  who  voted  for  him  at  the  several  pre- 
cincts, and  prove  the  frauds  by  this  character  of  evidence,  and  in  other  cases  where 
no  such  account  was  kept  to  examine  each  voter  separately  and  prove  by  his  own  tes- 
timony for  whom  he  cast  his  ballot ;  that  under  the  old  law  of  Alabama,  in  existence, 
he  believes,  for  a  great  number  of  years,  each  ballot  whs  required  to  be  numbered 
with  the  number  of  the  voter's  name  on  the  poll-list,  and  thus,  by  producing  in  evi- 
dence the  ballots  on  the  examination  of  the  voter  the  fraud  could  be  proven,  £fnd  it 
would  be  only  necessary  to  examine  the  witnesses  where  ballots  had  been  changed. 
But  to  prevent  the  detection  of  fraud  and  to  facilitate  the  same  the  legislature  of  Ala- 
bama recently  repealed  the  law  providing  for  the  numbering  of  the  ballots,  so  that 
now  it  is,  as  aforesaid,  necessary,  in  order  to  prove  the  said  frauds,  to  examine  each 
witness  who  voted  the  Republican  ticket. 

It  would  therefore  be  necessary  for  affiant,  in  order  to  prove  the  allegations  con- 
tained in  his  notice  of  contest,  to  examine  at  least  one  thousand  witnesses,  in  addi- 
tion to  those  already  examined,  these  witnesses  being  in  localities  in  all  parts  of  his 
district. 

Affiant  submits  that  the  testimony  taken  in  his  behalf  in  Lee  County  fully  sustains 
the  allegations  in  his  notice  of  contest,  as  to  the  precincts  in  that  county  and  gener- 
ally as  to  the  character  of  the  frauds  iu  behalf  of  the  contestee  at  the  election  and  as 
alleged  by  him. 

Contestee  avers  that  since  the  Congressional  and  State  election  occurring  on  a  day 
in  November,  1874,  and  at  which  said  election  numerous  acts  of  intimidation,  consist- 
ing of  threats,  violence,  and  murder,  were  committed,  and  which  said  election  resulted 
in  placiug  the  government  of  the  State  in  the  hands  of  persons  elected  by  the  Demo- 
cratic party,  nothing  resembling  a  fair  election  has  occurred  in  his  district  in  any 
election  where  a  Republican  was  a  candidate  foB  office;  that  this  is  generally  known, 
admitted,  and  boasted  of  by  members  of  the  Democratic  party. 

That  in  counties  such  as  Barbour,  Lee,  Russell,  and  Bullock,  in  his  district,  where 
the  Republicans  have  majorities  of  thousands,  it  is  utterly  impossible  for  them  to  elect 
even  a  justice  of  the  pt'ace  in  any  precinct. 

They  cast  their  ballots,  but  the  ballots  are  not  counted  at  all,  or  are  counted  for  the 
opponent  of  the  person  voted  for.  Affiant  states  that  if  he  is  permitted  time  to  inves- 
tigate the  last  election,  or  if  this  committee  will  investigate  the  same,  they  will  find 
that  the.  election  was  a  mere  farce  ;  that  there  was  no  desire  or  intention  on  the  part 
of  the  officers  designated  by  the  law  to  conduct  or  supervise  said  election  that  it 
should  be  fairly  conducted. 

Affiant  is  corroborated  in  these  allegations  by  evidence  of  the  highest  character,  to 
which  he  now  refers,  to  wit,  the  report  of  a  select  committee  of  the  House  of  Repre- 
sentatives on  affairs  iu  Alabama,  made  to  the  second- session  of  the  Forty-third  Con- 
gress on  February  23,  1875,  by  Mr.  Cobum,  chairman  of  said  committee,  with  the 
evidence  accompanying  the  same,  and  the  report  of  the  subcommittee  of  Privileges 
and  Elections  of  the  Senate  of  the  United  States,  by  Mr.  Cameron,  chairman,  made  to 
the  second  session  of  the  Forty-third  Congress  on  March  3,  1877,  with  the  evidence 
accompanying  the  same.     In  this  report  the  committee  say  : 

*•  Being  clothed  with  the  power  to  make,  alter,  or  amend  the  laws  of  the  State,  all 
further  resort  to  any  form  of  physical  violence  on  the  part  of  the  Democrats,  in  order 
to  control  the  ballot-boxes,  became  unnecessary.  A  different  plan  presented  itself 
which  was  more  acceptable,  because  more  certain  of  success,  and  more  secret  in  its 
operations. 

"Fraud,  under  color  of  the  forms  of  law,  was  substituted  for  violence,  and  the  laws 
of  the  State  regulating  and  controlling  the  registration  of  voters  and  the  conduct  of 
elections  were  so  framed  as  to  offer  every  encouragement  to  those  to  whom  was  com- 
mitted the  fraudulent  changing  of  votes  after  they  had  been  deposited,  or  the  making 
of  false  and  fraudulent  election  returns,  or  the  fiilure  to  open  the  polls  and  conduct 
the  elections  in  large  Republican  jneiincts,  or  the  using  of  the  method  of  obstruction 
and  embarrassment  with  which  the  laws  had  provided  them  to  exclude  from  the  bal- 


16  DIGEST    OF    ELECTION    CASES. 

lot -box  the  ballots  of  qualified  electors.  The  committee  fiud  that  throughout  the 
State,  as  far  as  their  investigation  extended,  and  without  exception  in  one  or  the  other 
forms  which  the  laws  permitted,  the  Republicans  were  either  deprived  of  the  opportu- 
nity to  cast  their  ballots,  or  the  ballots,  when  cast,  were  changed  or  destroyed  when- 
ever and  wherever  it  was  deemed  necessary  to  serve  the  purposes  of  the  Democratic 
party.  To  designate  the  elections  of  August  and  November,  1876,  in  Alabama,  a» 
elections  by  the  people,  iu  so  far  as  the  purpose  of  an  election  is  to  indicate  the  choice 
or  will  of  the  people,  would  be  an  abuse  of  the  term." 

And  affiant  avers  that  the  condition  of  affairs  in  his  district,  as  above  described, 
has  continued  to  be  the  same  as  reported  by  the  said  several  committees,  and  was  the 
same  at  the  election  of  November  2,  IBriO  ;  and  that  this  an  investigation  of  the  said 
pretended  election  of  contestee  will  fully  show. 

A.  A.  MABSON. 

Sworn  to  and  subscribed  before  me  this  third  day  of  Febrnarv,  A.  D.  1882. 

A.  S.  TAYLOR, 

Notary  Public, 
To  the  honorable  the  House  of  Bepresentalires  of  the  Untied  States: 

As  supplemental  to  the  affidavit  heretofore  by  him  made  and  now  before  your  Com- 
mittee on  Elections,  in  the  case  of  Mabson  vs.  Oates,  affiant  states  that  he  used  due 
diligence  in  taking  testimony  during  the  time  allowed  him  by  law  ;  that  he  com- 
menced taking  testimony  only  a  few  days — to  wit,  seven  days — after  his  time  for  tak- 
ing testimony  began  to  run,  and  long  before  his  testimony  in  Lee  County  was  taken  ; 
that  his  earlier  testimony  is  not  before  you  because  of  the  detention  thereof  by  H.  H. 
Smith,  as  stated  in  his  former  affidavit ;  that  the  counsel  for  contestee  consumed  the 
time  of  contestant  in  taking  testimony  by  asking  his  witnesses  needless  and  irrelevant 
questions,  for  the  purpose  of  taking  up  his  time,  in  many  instances  willfully  consum- 
ing three  or  four  hours  in  cross-examining  his  witnesses,  when  a  few^  minutes  were  all 
that  was  actually  necessary  for  any  legitimate  purposes  of  such  examination  ;  that 
crowds  of  white  men,  supporters  of  contestee,  would  be  constantly  at  the  places  where 
his  witnesses  were  being  examined,  and  would  by  their  boisterous  conduct  purposely 
embarrass  and  intimidate  his  witnesses,  who  were  all  colored  men  ;  that  it  is  the  cus- 
tom of  trade  in  Bullock  County,  in  his  district,  for  the  merchants  to  give  to  the  farm- 
ers credit  for  supplies  furnished,  but  when  the  witnesses  for  contestant  were  at  Union 
Springs,  in  Bullock  Connty,  for  the  purpose  of  testifying,  many  of  these  merchants 
refused  to  give  credit  to  those  whom  they  had  formerly  credited,  because  they  were 
witnesses  for  contestant,  and  would  refuse  the  same  and  tell  them  to  return  home  and 
not  be  fooling  about  politics,  and  to  go  to  contestant  for  money  which  they  might 
need ;  and  that  contestant  was  greatly  embarrassed  by  having  to  supply  the  neces- 
sities of  so  large  a  number  of  witnesses,  as  it  was  intended  by  the  said  merchants,  by 
their  refusals  as  aforesaid,  that  he  should  be.  Affiant  was  obstructed  in  taking  testi- 
mony in  Henry  County,  in  his  district,  first,  by  the  statement  of  contestee  made  la 
him  at  Opelika,  in  Lee  Connty,  that  some  of  the  young  men  in  Henry  County,  his 
nephews  among  them,  had  banded  together  for  the  purpose  of  driving  him  out  of 
Henry  County  if  he  should  go  there  to  take  his  testimony,  but  that  contestee  discoun- 
tenanced such  proceedings  and  tried  to  dissuade  them,  but  did  not  know  whether  he 
could  control  them  or  not. 

Secondly.  That  J.  T.  Kitchen  was  present  at  the  election  at  Columbia  pr«ciuct,  in 
said  county,  and  could  prove  by  histestimony  that  he  saw  the  managers  of  election  at 
said  precinct,  who  were  all  Democrats,  changing  the  ballots  after  they  had  been  cast, 
by  substituting  for  ballots  actually  castfor  contestant  fraudulent  ballots  for  contestee, 
but  that  said  Kitchen,  as  affiant  believes  and  charges,  to  prevent  his  testifying  for 
affiant,  was  arrested  on  a  false  charge,  and  confined  in  jail  until  after  affiant's  time  for 
taking  testimony  had  expired,  when  he  was  released  and  the  prosecution  abandoned. 

Affiant  now  states  upon  oath  that  he  never  at  any  time  said  to  one  John  T.  Ware,  or 
to  any  one,  that  he  was  making  this  contest  for  the  purpose  of  making  money,  nor  did 
he  ever  state  to  any  one  that  he  knew  he  had  been  defeated  in  the  election.  On  the 
contrary,  contestant  states  that  he  is  not  induced  by  any  hope  or  expectation  of  re- 
ceiving money  in  making  this  contest,  but  that  he  prosecutes  the  same  wholly  fro'u  a 
desire  to  fulfill  a  duty  which  he  owes  to  those  who  voted  for  him,  and  who  were  de- 
prived of  the  lawful  benefit  and  results  of  their  ballots  cast  by  fraudulent  acts  on  the 
part  of  officers  of  the  election  in  failing  to  count  and  return  the  ballots  cast  for  him, 
and  in  substituting  therefor  ballots  east  for  contestee.  Affiant  states  that  he  has 
always  believed  since  the  election,  and  now  believes,  and  so  avers,  that  he  was  actu- 
ally elected  and  contestee  defeat-ed  by  the  lawful  votes  cast  for  him  on  the  day  of 
election. 

Affiant  states  if  he  were  allowed  sufficient  further  time  in  which  to  take  testi- 
mony, he  could  prove  to  the  best  of  his  knowledge  and  belief  the  following  facts: 

That  in  four  precincts  in  Lee  County,  in  his  district,  three  hundred  and  ten  votes 
which  were  cast  for  him  were  fraudulently  counted  for  contestee;  that  is,  la  precinct 


MABSON    VS.    GATES.  17 

No.  4,  71  votes;  precinct  No.  5,  100  votes ;  precinct  No.  6,  50  votes;  and  precinct  No. 
9,  75  votes. 

Tliat  in  four  precincts  of  Russell  County  six  hundred  and  seventy  ballots  cast  for 
bim  were  fraudulently  counted  for  contestee,  to  wit:  Precinct  No,  3,  100;  precinct 
No.  5,  100 ;  precinct  No.  7,  240  ;  and  precinct  No.  10,  230  votes.  • 

That  in  four  precincts  of  Henry  County,  two  hundred  and  ninety  votes  which 
were  cast  for  him  were  fraudulently  counted  for  contestee,  to  wit :  In  precinct  No.  1, 
-50  ballots;  precinct  No.  4,  150  ballots;  precinct  No.  12,  50  ballots;  and  precinct  No. 
13,  40  ballots. 

That  in  five  precincts  of  Barbour  County  nine  hundred  and  forty-two  ballots  which 
were  cast  for  him  were  fraudulently  counted  for  contestee,  to  wit :  Precinct  No.  1, 167 
ballots;  precinct  No.  2,  200;  box  No.  1,  precinct  No.  4,  125;  box  No.  2,  precinct  No. 
5,  350  ballots ;  and  box  No.  3,  precinct  No.  5,  100  ballots. 

And  affiant  avers  that  in  the  elections  in  all  of  said  election  precincts^he  managers 
and  returning  officers  were  wholly  and  entirely  members  of  the  political  party  to  which 
contestee  belonged,  opposed  affiant's  election,  and  favored  the  election  of  contestee. 
Affiant  avers  that  in  Bullock  County  eighteen  hundred  and  eighty-seven  votes  were 
cast  for  liLm,  and  four  hundred  and  thirty -six  for  contestee,  which  the  county  board 
of  canvassers  refused  to  count,  upon  the  return  made  by  them,  in  estimating  the  re- 
sult of  the  said  election  in  said  county,  on  the  ground  that  the  poll-lists  accompany- 
ing the  returns  from  the  precincts  were  not  signed — the  same  being  not  a  lawful  rea- 
son for  their  refusal  to  count  and  estimate  these  votes  in  ascertaining  the  result. 

Affiant  avers  that  on  election  day  more  than  eight  hundred  lawfully  qualfied  elect- 
ors, desiring  and  intending  to  vote  for  him,  were  present  at  the  polling  place  for  the 
precinct  commonly  known  as  Seal*  Station  precinct,  in  Russell  County,  but  that  the 
opening  of  the  polls  in  said  jjrecinct  was  prevented  by  violence  and  intimidation  on 
the  part  of  the  friends  of  contestee,  who  desired  to  prevent  an  election  in  said  precinct, 
because  of  the  large  majority  thei-e  for  contestant.  Affiant  avers  that  138  votes  from 
Hilliardsville  precinct,  in  Henry  County,  and  72  from  Hicks'  Shop,  in  said  county, 
were  unlawfully  counted  for  contestee,  no  lawful  or  sufficient  return  being  made 
thereof  from  which  the  county  board  of  canvassers  could  estimate  the  same. 

Affiant  submits  that  he  has  proved  the  facts  alleged  in  relation  to  precincts  No.  9, 
4,  and  6  in  Lee  County,  by  his  testimony  already  taken.  The  vote,  as  certified  by  the 
secretary  of  state,  at  said  election  was  for  contestee,  10,614 ;  for  contestant,  5,636 ; 
but  the  allegations  aforesaid  show  that  there  should  be  added  to  contestant's  vote 
and  taken  from  contestee's  in — 

Lee  County 296 

Russell  County ,. 670 

Henry  County 290 

Barbour  County 942 

Total 2,198 

That  there  should  be  added  to  contestant's  vote  the  votes  not  counted  by  the  county 
board  of  canvassers  in  Bullock  County,  1,877,  and  to  contestee's,  436. 

That  contestant  is  entitled  to  800  votes  from  Seals  Station  precinct,  as  aforesaid. 

That  contestee  is  not  entitled  to  215  votes  counted  for  him  in  Henry  County,  as 
aforesaid. 

This  would  make  the  actual  result  of  the  ballot  cast  in  said  election  to  be  as  follows  : 


Mabson. 

Official 5,636 

Add 2,198 

7, 834 
Add 1,877 

9,711 
Add 800 


10,511 


Gates. 

Official 10,614 

Less 2,198 

8,416 
Add 436 

8, 852 
Less 210 


8,642 


Showing  the  true  result  to  be  a  majority  of  votes  for  contestant  of  1,869  votes  which 
affiant  verily  believes  to  be  substantially  correct. 

A.  A.  MABSON. 
Fkbruary  14,  1882. 

Sworn  and  subscribed  to  before  me  this  14th  day  of  February,  1882. 
[SEAL.]  THOS.  J.  MYERS, 

Notary  Public. 
H.  Mis.  35^ — 2 


18  DIGEST    OF    ELECTION    CASES. 

JAMES  Q.  SMITH  vs.  CHARI.ES  M.  SHELIiEY. 

Fourth  Congressioxal  District  of  Alabama. 

Contestant  charged  fraud,  ballot-box  stuffing,  and  conspiracy  on  the  part  of  the  party- 
friends  of  contestee,  and  the  illegal  rejection  of  returns. 

Held,  That  returns  rejected  because  signed  by  the  mark  (X)  of  the  inspectors,  the  same 
should  have  been  received  and  the  vote  counted. 

Ballot  rejected  and  not  counted  because  deposited  in  a  cigar-box,  on  account  of  the 
failure  of  the  proper  officers  to  provide  the  usual  ballot-box,  or  blanks  for  returns, 
should  be  counted. 

Where  one  who  had  been  appointed  an  inspector  of  election  refused  to  act,  although 
present,  and  after  the  closing  of  the  polls  he  appears  in  the  room  and  claims  and 
takes  the  ballot-box  containing  the  ballots  and  puts  it  in  a  satchel,  and  such  per- 
son being  remonstrated  with  hands  back  another  box  containing  diiferent  ballots 
which  are  counted,  the  returns  from  that  precinct  are  corrected  as  the  votes  are 
proven  to  be  by  the  evidence. 

Where  the  inspectors  of  election  failed  to  appear  and  open  the  polls,  and  there  are  no 
blanks  or  ballot-box  provided,  and  the  citizens  then  organize,  and  a  list  of  the 
voters  present  is  taken,  and  an  expression  of  preference  from  each  as  to  his  choice 
for  Representative  in  Congress,  a  return  thereof  is  refused  and  not  counted,  because 
no  polls  were  in  fact  opened  and  no  ballots  actually  cast. 

The  House  adopted  the  majority  report,  and  contestant  having  died 
the  seat  was  declared  vacant. 


June  27,  1882. — Mr.  W.  G.  Thompson,  from  the  Committee  on  Elec- 
tions, submitted  the  following 

REPORT: 

The  Gommitiee  on  Elections^  to  whom  was  referred  the  above-entitled  con- 
tested election^  have  had  the  same  under  consideration^  and  submit  the 
following  report : 

James  Q.  Smith  and  Charles  M.  Shelley  were  opposing  candidates  for 
a  seat  in  the  Forty-seventh  Congress,  from  the  fourth  Congressional 
district  of  Alabama,  at  the  November  election  held  on  the  2d  day  of 
November,  1880. 

By  the  returns  of  said  election,  as  certified  to  the  secretary  of  said 
State,  it  appears  that  Mr.  Shelley  received  of  the  votes  9,301,  Mr.  Smith 
received  of  the  votes  6,650,  showing  Mr.  Shelley's  majority  to  be  2,651. 

On  the  3d  day  of  December,  1880,  Mr.  Smith  caused  to  be  served  upon 
Mr.  Shelley  a  notice  of  his  intention  to  contest,  as  the  law  provides,  as 
shown  by  the  certificate  in  record,  page  26. 

In  this  notice  of  contest  it  was  alleged  by  contestant  that  fraud,  bal- 
lot-box stuffing,  and  conspiracy  between  the  partisan  friends  and  sup- 
porters of  contestee  had  been  resorted  to,  by  means  of  which  he  was 
defrauded  outof  his  election,  and  that  as  a  matter  of  fact  a  large  majority 
of  the  votes  cast  at  said  election  were  cast  for  contestant  and  that  he 
was  duly  elected,  and  specifically  charged  that  these  frauds  had  been 
practiced  in  the  several  voting  precints  in  the  counties  of  Hale,  Perry^ 


SMITH    VS.    SHELLEY.  19 

Lowndes,  Dallas,  ami  Wilcox,  and  which  precincts  will  hereafter  be 
named  in  order.  The  contestee  filed  his  answer  denjing  all  the  charges 
set  forth  in  the  said  notice,  thereby  making  it  incumbent  upon  the  con- 
testant to  establish  bj"  competent  evidence  the  truth  of  his  allegations. 

Mr.  Shelley,  having  received  the  certificate  of  election,  was  admitted 
to  his  seat  when  the  Forty-seventh  Congress  was  organized,  and  has 
beeu  during  the  pendency  of  the  contest  the  sitting  member  and  still 
retains  the  same. 

It  appearing  upon  the  face  of  the  records,  as  before  stated,  that  Mr. 
Shelley  having  received  a  majority  of  2,651  of  the  votes  cast,  contestant 
must  by  proper  evidence  overcome  this  majority  and  show  fraud  through 
which  he  was  deprived  of  the  votes  necessary  to  make  such  change. 

It  is  deemed  proper  to  call  attention  to  the  condition  of  this  district, 
so  far  as  population,  color,  and  political  proclivities  are  apparent,  not 
only  now  but  from  the  time  the  district  was  first  organized,  and  this  is 
shown  by  the  evidence. 

When  the  Democratic  party  came  into  power  in  1874  the  work  of  re- 
organizing the  Congressional  districts  was  speMily  commenced,  the 
object  being  to  make  all  the  districts  Democratic.  After  the  most  la- 
borious and  careful  investigation  of  this  matter,  it  was  found  impossi- 
ble to  do  so,  and  it  was  then  considered  best  to  put  into  one  district  all  the 
large  Eepublican  counties  adjoining  each  other,  to  be  called  the  fourth 
Congressional  district  of  Alabama.  The  acknowledged  Eepublican  ma- 
jority in  Dallas  County  was,  at  the  State  election  of  ISTi,  4,957 ;  in 
Hale  County,  2,304;  in  Lowndes  County,  2,953  j  in  Wilcox  County, 
2,126;  in  Perry  County,  2,606,  making  a  clear  Republican  majority  in 
the  district  of  14,946  votes.  At  the  Presidential  election  in  1876,  Hayes, 
Eepublican,  received  a  majority  over  Tilden,  Democrat,  of  9,446  votes, 
and  in  the  same  year  in  the  State  election.  Woodruff,  Independent, 
receiving  Eepublican  support,  had  a  majority  over  Houston,  Democrat, 
for  governor,  of  9,115  votes.  In  the  Congressional  election  of  the  same 
year,  Eapier,  running  as  the  regular  Eepublican  nominee,  and  Haralson 
running  as  a  bolting  candidate  (both  persons  of  the  negro  race),  the 
joint  majority  over  Shelley,  Democrat,  was  6,256  votes.  The  census 
returns  of  1880  show  that  there  are  now  in  the  counties  composing  the 
district  135,881  persons  of  the  negro  race  and  32,855  white  persons, 
disclosing  a  very  large  increase  of  the  negro  race,  so  that  on  a  calcu- 
lation it  may  be  assumed  that  there  is,  in  fact,  now  a  majority  of  18,000 
negro  Eepublican  voters  over  white  Democratic  voters  in  the  district. 
The  proof  made  by  the  contestant  in  this  contest  clearly  shows  that 
from  95 to  97^  percent,  of  the  negro  electors  cast  a  Eepublican  ballot 
for  Eepublican  candidates  in  said  district  irhen  permitted  to  do  so. 

And  in  fact  these  considerations  give  emphasis  to  contestant's  dec- 
larations in  argument — 

The  Sonth  was  to  be  made  solid,  and  the  fourth  district  must  be,  and  was,  captured 
to  accomplish  this  much  to  be  desired  end.  The  negro  electors  of  the  fourth  district 
are  now  as  successfully  deprived  of  the  elective  franchise  as  when  they  wore  the  chains 
of  slavery,  were  sold  at  the  auction  block,  and  their  backs  quivered  at  the  overseer's 
lash. 

This  is  the  language  of  a  citizen  of  the  State  of  Alabama  since  his 
earlj'  boyhood — a  man  who  has  held  high  positions  of  honor  and  trust — 
the  contestant  in  this  case,  and  made  in  the  light  of  the  facts  he  has 
presented  in  his  evidence  in  this  contest. 

The  evidence  adduced  by  contestant  shows  that  in  Mitchell's  voting 
precinct,  in  Dallas  County,  he  had  cast  for  him  360  votes  and  for  con- 
testee 1  vote.    This  vote,  although  returned  and  delivered  to  the  proper 


20  DIGEST    OF    ELECTION    CASES. 

officer,  was  rejected,  and  the  supervisors  refused  to  open  or  count  the 
ballots,  for  the  alleged  reason  that  the  statements  made  by  the  inspect- 
ors were  not  signed.  The  sam^  objections  were  made  to  the  returns 
from  many  other  precincts,  when  in  fact  they  were  signed,  but  frequently 
the  parties  signing  the  same  did  so  by  making  their  mark,  and  this  is 
legal  even  under  the  laws  of  the  State  of  Alabama.  (See  title  1,  chap. 
1,  Code  of  Alabama.  Sec.  1. — Signification  of  words  :  "  Signatures  or 
subscription  includes  mark  when  the  person  cannot  write,  his  name  be- 
ing written  near  it  and  witnessed  by  a  person  who  writes  his  own  name 
as  a  witness.") 

And  your  committee  cannot  escape  the  conviction,  from  the  testimony, 
That  a  thoroughly  organized  and  preconcerted  plan  and  purpose  had 
been  made  and  understood  by  and  amongst  the  Democratic  partisans 
and  supporters  of  Mr.  Shelley,  that  in  all  the  precincts  where  the  Re- 
l>ublican  majorities  were  large  and  Democratic  voters  very  few  that  the 
Democratic  inspectors  of  such  precinct  should  fail  and  refuse  to  open 
the  polls  on  the  day  of  election,  and  thereby  leave  the  work  of  so  do- 
ing in  the  hands  of  colored  voters  whose  education  was  such  as  to  make 
it  quite  probable  that  some  clerical  error  would  occur,  so  as  to  furnish 
an  excuse  for  rejecting  the  box  entirely. 

Strong  corroborative  evidence  of  this  is  found  in  the  further  fact  that 
the  county  supervisors  refused  to  appoint  any  Republican  in  such  pre- 
cincts selected  by  the  Republican  county  committees,  but  invariably  se- 
lected one  who  was  unable  to  read  or  write,  or  who,  however  honest  in 
intention,  would  not  be  competent  to  make  out  the  required  returns  in 
a  proper  and  legal  manner,  or  technically'  correct  in  all  particulars,  and 
the  evidence  conclusively  shows  that  the  Democratic  supervisors,  com- 
posed of  the  sheriff,  probate  judge,  and  clerk  of  the  court  of  the  county, 
did  not  fail  to  find  a  pretext  for  refusing  to  count  such  boxes,  where,  by 
sacrificing  one  vote  for  the  Democrat,  they  would  destroy  360  for  the 
Republican.  This  the  committee,  however  much  they  may  admire  the 
heroic  effort  for  a  fair  vote  and  honest  count,  cannot  in  this  case  allow 
the  sacrifice. 

The  testimony  in  support  of  this  is  found  as  follows :  B.  Hatcher,  pp. 
56-59;  Lot  Thomas,  pp.  111-113;  Berry  Moore,  pp.  113,  111;  Geo.  F. 
Beach,  pp.  100-104,  375-378,  and  C.  Duke,  pp.  147,  148. 

B.  F.  Hatcher,  supervisor,  returns  as  follows : 

U.  S.  supervisor' n  return  of  votes  cast  for  Representatives  in  Congress  from  the  ith  Congres- 
aional  district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  35,  commonly  called  Mitch- 
^Vs^in  the  county  of  Dallas,  on  the  2nd  day  of  November,  1880. 


I     (B,fl 

Karnes  of  candidates.  j  "S  a  i 

ill  I 

I    S  S  a 


f25 


J.  Q.  SmiUi 360 

C.  M.  SheUy |  1 


360 
1 


Total  Congressional  vote I       361  361 

Ij  the  undersigned,  supervisor  of  election,  appointed  by  the  circuit  court  of  the 
United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  ray  hand  at  Mitchell's,  Ala.,  this  2nd  day  of  November,  1880. 

BEN.  F.  HATCHER, 

Supervifor, 


SMITH    VS.    SHELLEY. 


21 


CAHABA  PRECINCT,  DALLAS  COUNTY. 

This  box  was  not  counted  by  the  county  supervisors  because  the 
statement  of  the  result  returned  was  informal,  but  the  evidence  shows 
that  no  blanks  for  that  purpose  were  furnished.  And  the  evidence  is 
clear  as  to  how  the  actual  vote  was  (see  evidence  of  S.  G.  Hatcher,  pp. 
61-71 5  Simon  XJlmer,  pp.  65,  66 ;  Elisha  Pittraan,  pp.  66-71 ;  Wesley 
Thomas,  pp.  71-75;  Osborn  Gardner,  pp.  75-78;  George  F.  Beach, 
100-104;  and  J.  0.  Duke,  pp.  147,  148). 

Supervisor's  Return. 

U.  S.  super  visor' 8  return  of  votes  cast  for  Representatives  in  Congress  from  the  4th  CongreS' 
sional  district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  16,  commonly  called  Cahaba, 
in  the  county  of  Dallas,  on  the  2d  day  of  November,  1880. 


»fe" 

a   ■ 

^■° 

it  . 

ori 

>  9  a 

►'g.a 

Names  of  candidates. 

•g  Bo 

o  9  f? 

Lj    S    V 

t-,     ® 

«   *  2 

^i*™ 

• 

'^s.s 

^p-s 

JZi 

^ 

James  Q.  Smith 

376 

Charles  M.  Shelley    

11 

00 

38T 

Box  thrown  out ;  returns  irregular. 

I,  the  undersigued,  supervisor  of  election,  appointed  hy  the  circuit  court  of  the 
United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  my  hand  at  Cahaba,  Ala. ,  this  2uth  day  of  November,  1880. 

ELISHA  PITTMAN, 
,  Supervisor. 

PINE  FLAT  PRECINCT,   DALLAS  COUNTY. 

The  returns  rejected  because  signed  by  making  mark  for  signature. 
Evidence  of  Frank  Johnson,  pp.  81-84  ;  S.  Torner,  pp.  84-87.  Exhibit, 
p.  364.    George  F.  Beach,  pp.  100-104,  375-378. 

Supervisor's  Return. 

U.  S.  superrisoi'^s  return  of  rotes  cast  for  Representatives  in  Congress  from  the  Ath  Congres- 
sional district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  11,  commonly  called  Pine 
Flat,  in  the  county  of  Dallas,  on  the  2d  day  of  November,  1880. 


lifames  of  candidates. 


James  Q.  Smith 

Charles  M.  Shelly 

Total  Congressional  vote 


I,  the  undersigned,  supervisor  of  election  appointed  by  the  circuit  court  of  the 
United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  ravhand  at  Pine  Flat,  Ala.,  this  5th  day  of  November,  1880. 

SKADE  TORNER, 

Supervisor. 


22 


DIGEST    OF   ELECTION    CASES. 


BIVEE  PRECINCT,   DALLAS   COUNTY. 

Evideuce  of  Joseph  Eichardson,  pp.  87-91.  Exhibit,  p.  363.  Clifton 
Campbell,  pp.  91-94;  W.  H.  Hatcher,  pp.  94-97  ;  Dave  Burns,  pp.  97- 
100;  George  F.  Beach,  pp.  100-104,  375-378;  and  J.  C.  Duke,  pp.  147, 
148. 

U.  S.  8upervi8(M'^  8  return  of  votes  east  for  Representatives  in  Congress  from  the  4th  Congres- 
sional district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  10,  commonly  called  River 
heat,  in  the  county  of  Dallas,  on  the  2d  day  of  November,  1880. 


Kames  of  candidates. 


J.  Q.  Smith 

G.  Turner 

Willard  Warner 

L.  K.  Smith 

C.W.Buckley 

J.  J.  Marten 

B.  S.  Turner 

D.D.  Booth 

W.  S.Bird 

N.S.  McAfee 

J.S.Clark 

Bragg 

ONeal 

Bester  

P.idgett 

Waddle 

Enoch 

Saddle 

Hanis 

Bowder 

Jones  

C.  M.Shelley 

Total  Congressional  vote 


martin's  precinct,  DALLAS  COUNTY. 


In  this  precinct  there  were  cast,  as  the  evidence  shows,  for  Smith  384 
votes,  and  for  Shelley  16  votes.  The  ballots  were  counted,  the  returns 
made  out,  placed  in  a  box,  and  returned  to  the  sheriff"  of  the  county, 
and  delivered  to  him,  but  when  opened  by  the  county  supervisors  no 
returns  found  and  none  counted.  The  evidence  is  clear  and  abundant, 
both  as  to  the  votes  cast  for  each  candidate  and  that  the  return  was 
made  as  the  law  requires,  and  was,  when  delivered  to  the  sheriff  by  the 
returning  officer,  in  the  same  condition  as  when  it  left  the  inspector's 
hands.  The  sheriff  had  the  key  to  the  box,  and  while  the  evidence 
does  not  show  that  he  tampered  with  the  box,  it  does  show  the  facts 
set  forth  above;  and  the  result  was  that  Mr.  Smith  again  lost  384  votes 
honestly  cast  for  him,  while  Mr.  Shelley  lost  16.  The  Democratic  loss 
is  not  so  great  as  to  cause  extreme  anguish  of  spirit  in  them,  being  con- 
soled as  they  were  by  the  fact  that  the  Republicans  lost  384  at  the  same 
time. 

The  evidence  on  this  precinct  is  found  as  follows :  N .  Petteway,  pp. 
114-121;  Abe  Martiu,  pp.  121-124;  J.  C.  Duke,  pp.  147-148;  and  Ex- 
hibit, p.  361.  In  this  precinct  the  Democratic  inspectors  refused  to  open 
the  polls,  and  no  blanks  for  the  returns  were  furnished. 


SMITH    VS.    SHELLEY. 


23 


Supervisor's  Eeturn. 


U.  S.  superoisor's  return  of  votes  cast  for  Representatives  in  Co  ngress  from  the  4th  Congres- 
sional district  of  ths  State  of  Alabama,  at  precinct  or  poll  No.  7,  commonly  called  Martin 
Sta.,  in  the  county  of  Dallas,  on  the  2d  day  of  November,  1880. 


ITames  of  candidates. 


ao">i 

aj"  m 

a)-H 

013    ■ 

0  25 

«P 

III 

fe*S 

SgS 

itiS 

^a 

^ 

384 

384 

16 

16 

384 

.James  Q.  Smith 

Charles  M.  Shelley 

William  Stebin  

Total  Congressional  vote 


I,  the  undersigned,  supervisor  of  election  appointed  by  the  circuit  court  of  the 
United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  my  hand,  at  Martin  Sta.,  Ala.,  this  2'  day  of  November,  1880. 

JOHN  WESLEY, 

Supervisor. 
To  J.  AV.  DiMMICK, 

Chief  Supervisor  of  Elections,  Montgomery,  Ala.* 

The  inspectors  appointed  by  the  co.  refused  to  open  the  polls.  I  went  for  the  bal- 
lot-box that  was  in  the  freight-house,  in  charge  of  S.  Stinehardt,  fr't  ag't  at  Martin's 
Sta.,  and  got  it  from  his  clerk ;  but  Mr.  Stinehardt  met  me  and  taken  it  away  from 
me,  and  said  no  one  should  have  it  except  Mr.  Martin,  and  that  if  I  or  any  one  else 
put  hands  on  it  would  get  a  ball  in  us.  I  sent  for  Mr.  Martin  twice  before  I  could  get 
it.  I  succeeded,  however,  in  getting  the  boxes  and  opening  the  polls  before  nine  o'c'k. 
There  was  no  blanks  of  any  kind  in  the  boxes,  and  we  had  to  use  writing  paper.  We 
done  the  very  best  that  we  could  under  the  circumstances. 

his 
JOHN  -f  WESTLY. 
mark. 

P.  S. — Mr.  Stinehardt,  in  whose  employ  I  was,  told  me  that  because  I  taken  the  part 
I  did  that  he  had  no  further  use  for  me. 

LEXINGTON  PEECINCT,  DALLAS  COUNTY. 

The  facts  atteiiding  the  vote  in  this  precinct  are  similar  to  the  one 
above.  The  evidence  of  J.  Adams,  pp.  124-129 ;  Exhibit,  p.  362 ;  Horace 
Mosley,  pp.  129-131;  George  T.  Beach,  pp.  100-104,  375-378;  J.  C. 
Duke,  pp.  147,  148,  shows  convincingly  to  your  committee  that  at  this 
precinct  there  were  cast  for  Mr.  Smith  320  votes,  and  the  Democratic 
supervisors  in  this  case  again  failed  to  tiud  any  returns,  which  the  evi- 
dence shows  were  in  the  box  when  delivered,  and  Smith  again  com- 
pelled to  lose  320  votes,  while  Shelley  lost  none,  having  received  none. 

Sl'pervisor's  Return. 

U,  S.  supervisor's  return  of  votes  east  for  Representatives  in  Congress  from  the  Ath  Congres- 
sional district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  9,  commonly  called  Lexing- 
ton, in  the  county  of  Dallas,  on  the  2d  day  of  November,  1880. 


Karnes  of  candidates. 

III 

lis. 

iia 

itiS 

^ 

J2J 

James  O.  Smith 

320 

320 

Total  Congressional  vote. 


320 


320 


24 


DIGEST    OF    ELECTION    CASES. 


There  wasn't  any  disturbance  the  2d  day  November  at  the  election  Lexington  beat. 
The  whites  acted  well.  No  man  oft'ered  any  riot,  disputing  about  the  election.  Close 
at  5  o'clock  p.  m.     The  poll  opened  4  minutes  after  6  o'clock. 

I,  the  undersigned,  supervisor  of  election  appointed  by  the  circuit  court  of  the 
United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 

Witness  my  hand  at  Lexington,  Ala.,  this  4th  day  of  November,  1880. 

CHILLATCHIE  PRECINCT,  DALLAS  COUNTY. 

Evidence— L.  Irbv,  pp.  131-138  ;  Exhibits,  pp.  138-140,  370 ;  Touey 
Abies,  pp.  141-144;  G.  F.  Beacb,  pp.  100-104;  aud  J.  C.  Duke,  pp. 
147, 148. 

In  this  precinct  the  Democratic  inspectors  refused  and  failed  to  open 
the  polls.  The  citizens  did  so,  but  as  the  county  supervisors  failed  ta 
furnish  either  ballot-boxes  or  blanks  for  the  returns,  the  votes  were  put 
into  a  cigar-box  and  counted.  Certified  returns  made  out  and  delivered 
to  the  sheriff,  or  rather  an  offer  to  do  so  ;  when,  as  the  evidence  shows, 

he  was  told  by  the  officer  to  take  it  away,  as  the  d -d  thing  was  not 

wanted  in  his  office.  This  officer  had  no  authority  to  refuse  receivings 
the  box ;  but  as  it  contained  124  votes  for  Smith,  and  but  one  for  Shel- 
ley, his  profanity  as  well  as  refusal  may  be  accounted  for. 

Supervisor's  Returx. 

U.  S.  supervisor's  return  of  votes  cast  for  Bepresentatives  in  Congress  from  the  fourth  Con 
gressional  district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  26,  cortwionly  called 
Chillatchie,  in  the  county  of  Dallas,  on  the  2dday  of  November,  1880. 


NSames  of  candidates. 


k  <e  £ 
III 


sP  o 


For  electors  for  President  and  Vice-President  of  the  IT.  S.  States 

•James  Q.Smith 

W.J.  Stephens 

Total  Congressional  vote 


124 


I,  'the  undersigned,  supervisor  of  election  appointed  by  the  circuit  court  of  th& 
"United  States,  hereby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  my  hand  at  Chillatchie,  Ala.,  this  2d  day  of  November,  1880. 

LINDSAY  IRBY, 

Superviso): 

To  J.    W.   DlMMICK, 

Chief  Supervisor  of  Elections,  Montgomery,  Ala. : 
The  polls  at  this  voting  place  were  opened  by  the  colored  citizens.    The  inspector* 
appointed  by  the  co.  (if  any)  never  showed  themselves,  nor  could  we  find  out  who 
they  were,  nor  could  we  get  any  ballot-box.    We  voted  in  a  segar-box.     So  far  as  ta 
law  the  election  was  all  right,  except  we  voted  in  a  segar-box. 

LINDSAY  lEBY. 


In  all  the  foregoing  precincts  the  Democratic  inspectors  failed  and  re- 
fused to  open  the  polls,  thus  compelling  the  citizens  to  appoint  others, 
whom  it  was  supposed,  on  account  of  illiteracy,  would  fail  to  make  out 
the  statements,  returns,  &c.,  in  a  legal  manner,  and  thus  furnish  the 
county  supervisors,  who  appointed  these  inspectors,  an  excuse  for  re- 
jecting the  returns.  This  failure  on  the  part  of  the  inspectors  invariably 
occurred  in  j^recincts  largely  Kepublican,  and,  read  in  the  light  of  the  sub- 
sequent action  of  the  county  supervisors,  furnishes  convincing  evidence 


SMITH    VS.    SHELLEY.  25 

of  collusion  jmd  fraud,  by  whicli  the  electors  of  these  precincts  were  to 
be  cheated  out  of  their  votes  and  Mr.  Smith  out  of  his  election,  and 
does  not  well  comport  with  the  resolve  for  a  free,  fair  vote  and  an  honest 
count. 

PINTLALA  PRECINCT,  LOWNDES  COUNTY. 

See  evidence  of  Samuel  M.  Duncan,  pp.  200-203 ;  W.  D.  Gaskin,  pp» 
203, 207 ;  exhibits,  pp.  344,  345;  Samuel  Lee,  pp.  207,  208;  J.  Y.  McDuffie,. 
pp.  211,  21G  ;  B.  W.  Mason,  pp.  554, 555  (contestee's  witnesses). 

In  this  precinct  the  Democratic  inspectors  failed  to  open  polls,  and 
the  evidence  shows  that  polls  were  opened  by  the  voters,  and  that  one 
E.  P.  Holcombe,  who  had  been  appointed  by  the  county  supervisors  as 
an  inspector,  refused  to  act,  although  present.  The  election  was  quiet 
and  orderly  during  the  voting,  but  about  the  time  the  polls  closed  said 
Holcombe  appeared  in  the  room  and  claimed  the  box,  and  against  the 
protest  of  the  oiiicers  took  the  box  and  put  it  in  a  carpet-sack  or  sachel, 
in  which  he  had,  in  the  opinion  of  your  committee,  another  ballot-box 
stuffed  for  the  occasion,  and  which  he,  after  disputing  with  the  ofiBcers 
of  the  election  for  a  time,  took  out  and  left  instead  of  the  one  he  had  taken 
from  the  table,  and  it  appears  fully  and  conclusively  that  the  box  stolen 
by  Holcombe  contained  315  votes  for  Smith  and  35  for  Shelley,  and  the 
one  substituted  only  9  votes  for  Smith  and  the  balance  for  Shelley. 

This  high-handed,  unfigleafed  fraud  is  so  grave  and  impudent  your 
committee  deem  it  proper  to  give  the  evidence,  in  part  at  least,  in  rela- 
tion to  this  transaction : 

William  D.  Gaskix,  a  witness  called  and  examined  by  the  contestant,  and  in  lii» 
behalf,  being  first  duly  sworn,  deposes  and  says  upon  oath  : 

Question.  Where  do  you  reside  ;  how  long  have  you  resided  there  ;  to  what  race  do 
you  belong  ;  what  is  your  occupation,  and  are  you  a  Republican  or  Democrat  in  poli- 
tics?— Answer.  I  reside  in  Pintlala  beat,  Lowndes  County,  Alabama,  and  have  lived 
there  about  eighteen  years;  I  belong  to  the  African  race;  am  a  farmer  byoccupation^ 
and  a  Republican  in  politics. 

(Counsel  objects  to  the  examination  of  the  witness,  upon  the  ground  that  he  reside* 
outside  of  the  district  iu  which  the  commissioner  resides,  and  in  a  diiferent  county.) 

Q.  Was  there  an  election  held  in  Pintlala  beat,  Lowndes  County,  on  the  2d  day  or 
November,  1880,  and  who  were  the  candidates  for  Congress  voted  for  at  that  election  f 
— A.  There  was  an  election  held  there  on  that  day.  The  candidates  were  James  Q. 
Smith  and  Charles  M.  SheJley. 

Q.  W^ho  were  the  inspectors  appointed  by  county  authority  to  hold  said  election  f 
Were  they  present  to  open  the  polls,  and  were  they  supporters  of  Charles  M.  Shelley 
for  Congress,  and  were  they  Democrats  in  politics  ? — A.  The  inspectors  appointed  by 
the  county  authorities  were  E.  P.  Holcombe,  D.  W.  McCarthy,  and  Robert  Dand- 
ridge.  Robert  Dandridge  and  E.  D.  Holcombe  were  present,  but  McCarthy  was  not. 
Holcombe  was  a  Democrat,  and  a  warm  supporter  of  Mr.  Shelley,  as  was  also  McCar- 
thy.    Robert  Dandridge  was  a  Republican. 

Q.  Did  E.  P.  Holcombe  offer  to  open  the  polls  and  hold  the  election  ? — A.  He  pre- 
tended at  first  in  the  morning  that  he  wanted  to  open  the  polls,  and  said  that  he  had 
to  wait  for  McCarthy,     McCarthy  did  not  come,  and  he  refused  then  to  act. 

Q,  Was  Dandridge,  the  other  inspector,  present  when  Holcombe  refused  to  act  f — A^ 
Yes,  sir. 

Q.  W^as  Holcombe  a  white  man,  and  is  Dandridge  a  man  of  color? — A.  Holcombe- 
was  a  white  man  ;   Dandiidge  is  a  colored  man. 

Q.  Who  opened  the  polls  and  held  the  election  ? — A.  Robert  Dandridge,  Philip 
Samuel,  and  Toney  Davis. 

Q.  Did  the  inspectors  take  an  oath  as  such ;  and  before  whom  was  it  taken  f  Were 
there  clerks  appointed,  and  who  were  they  ? — A.  The  inspectors  took  an  oath  admin- 
istered to  them  by  Mr.  Collins,  a  magistrate.  Two  clerks  were  appointed — Henry 
Green  and  Sampson  M.  Rives.     They  were  sworn  by  the  same  magistrate. 

Q.  Was  there  any  announcement  that  the  polls  were  open,  and  at  what  hour  ? — 
A.  The  polls  were  annonnced  open  at  about  half  past  eight  o'clock,  as  near  as  I  re- 
member, 

Q,  Do  you  know  Philip  Samuel  and  Toney  Davis,  and  how  long  have  they  resided 


26  DIGEST   OF   ELECTION   CASES. 

in  Piutlala  beat,  and  are  they  over  the  age  of  twenty-one  years  ? — A.  I  know  both  of 
them ;  they  are  each  over  twenty-one  years  of  age,  and  have  resided  in  that  place  for 
the  last  twelve  years. 

Q.  What  office  did  you  hold  on  the  day  of  the  election ;  were  you  commissioned,  and 
where  is  your  commission  now  ? 

(Counsel  for  contestee  objects  to  the  question,  upon  the  ground  that  it  calls  for  sec- 
ondary evidence. ) 

A.  I  was  United  States  supervisor,  I  was  commissioned ;  and  my  commission  is  at 
home. 

Q.  Were  you  present  all  the  day  of  the  election,  and  did  you  attend  to  the  manner 
in  which  the  voters  cast  their  ballots,  and  did  you  carefully  scrutinize  the  mauner  of 
conducting  said  election  ? — A.  I  was  present  during  the  day  of  the  election  and  noticed 
the  manner  in  which  the  voters  cast  their  ballots,  and  I  carefully  scrutinized  the 
manner  in  which  the  election  was  conducted. 

Q.  Who  received  the  ballots  from  the  voters ;  what  did  he  do  with  them ;  did  you 
keep  a  tally  or  any  account  of  the  number  of  ballots  cast  for  each  candidate  for  Con- 
:gres8  at  said  election  ? — A.  Robert  Dandridge,  one  of  the  inspectors,  received  the  bal- 
lots from  the  voters  and  passed  them  to  another  inspector,  who  deposited  them  in  the 
box.  I  kept  an  atcount  part  of  the  day.  There  were  but  two  candidates,  and  I  kept 
an  account  between  the  two. 

Q.  What  part  of  the  day  was  it  that  you  did  not  keep  an  account  ?— A.  After  about 
lialf  past  three  o'clock  I  ceased  to  keep  an  account. 

Q.  After  half  past  three  o'clock  were  you  in  the  room,  and  did  you  observe  the  vot- 
ing ?  State,  if  you  have  any  means  of  knowing,  how  many  votes  were  cast  after  half 
past  three  o'clock,  and  for  whom. — A.  I  was  in  the  room,  and  observed  the  voting 
after  half  past  three  o'clock.  The  only  means  I  had  of  knowing  how  many  were  cast 
was  my  seeing  the  ballots  as  they  were  handed  in  with  the  name  of  James  Q.  Smith 
«pon  them. 

Q.  Were  the  ballots  deposited  in  the  box  counted? — A.  They  were  not. 

Q.  State  as  near  as  you  can  the  number  of  votes  cast  for  James  Q.  Smith  for  Con- 
gress up  to  three  and  a  half  o'clock ;  state  as  near  as  you  can  the  number  of  votes 
■cast  for  him  between  the  hour  of  three  and  a  half  o'clock  and  until  the  voting  was 
over. — A.  Up  to  three  and  a  half  o'clock  he  had  gotten  about  two  hundred  and  seventy 
or  seventy-five  votes;  from  my  best  judgment,  from  that  time  until  the  polls  were 
«losed,  I  should  say  he  got  between  forty-five  and  fifty  votes. 

Q.  State  why  it  was  the  ballots  were  not  counted. — A.  About  eight  or  ten  minutes 
before  the  closing  of  the  polls  E.  P.  Holcombe  came  in  the  room  and  took  the  box  from 
the  table  where  it  had  been  all  day  during  the  voting ;  he  said  he  was  a  bailifi^  and 
had  a  right  to  take  possession  of  the  box.  He  put  it  in  his  sachel.  Five  or  six 
minutes  afterwards  his  son-in-law,  Samuel  J.  Murray,  came  to  the  door  of  the  room 
and  urged  him  (Holcombe)  to  give  him  the  sachel,  saying  he  was  in  a  hurry  to  go 
home.  Thereupon,  Holcombe  took  from  the  sachel  a  box  other  than  the  one  in  which 
the  ballots  had  been  deposited  and  then  handed  to  Murray  the  sachel  containing  the 
box  he  had  taken  from  the  table.  We  did  not  discover  that  the  box  had  been  changed 
until  Murray  had  driven  oft'  with  the  sachel  containing  the  proper  ballots  that  had 
been  voted  that  day. 

Q.  Describe  the  boxes,  and  how  you  discovered  that  they  had  been  changed  ? — A. 
They  w^ere  two  cigar-boxes.  The  right  box  was  bound  in  bright  red  paper,  and  had  a 
picture  on  one  end  of  a  man  with  a  sword  in  his  hand.  The  hole  in  which  the  ballots 
were  passed  was  in  the  end  of  the  box,  and  the  end  was  split  from  one  side  of  the  hole 
to  the  edge  of  the  box.  The  box  that  was  substituted  was  bouud  with  a  kind  of  pale 
bluish  paper,  and  had  the  bust  of  a  man  on  the  end  of  the  box  whose  features  were  il- 
!uminated  with  a  smile.     This  box  also  had  a  hole  in  the  end  of  it,  but  was  not  split. 

y.  Did  the  inspectors  open  the  box  that  was  left  upon  the  table.  And  state  if  it 
was  examined,  and  Avhat  you  discovered  it  to  be. 

(Question  objected  to  upon  the  ground  that  the  box  and  contents  are  the  best  evi- 
•dence  of  the  matters  called  for,  and  when  last  heard  from  was  iu  the  hands  of  the 
friends  of  the  contestant.) 

A.  We  opened  the  box,  after  we  discovered  the  fraud,  to  see  what  it  contained. 
We  did  examine  it,  and  found  it  stuffed  with  Shelley  and  Stephens  tickets,  and  only 
about  nine  for  Smith. 

Q.  Do  you  now  state  that  the  box  left  by  Holcombe,  and  which  you  opened,  is  not 
the  box  in  which  the  ballots  cast  during  the  daj^  were  deposited  ? — A.  Yes,  sir;  I  do. 

Q.  Do  you  know  the  number  of  colored  voters  in  Pintlala  beat,  and  do  they  chiefly 
vote  the  Republican  or  Democratic  ticket? — A.  There  are,  I  think,  between  three 
hundred  and  fifty  and  three  hundred  and  sixty,  and  they  vote  the  Republican  ticket; 
I  know  of  no  excei»tion  at  the  last  election. 

Q.  Do  you  know  the  number  of  white  men,  voters  of  Pintlala  beat,  and  do  they 
«hiefly  vote  the  Republican  or  Democratic  tickets? — A.  There  are  between  thirty  and 
thirty-five  white  voters,  I  think,  and  with  the  exception  of  two,  they  all  vote  the 
Democratic  ticket. 


SMITH    VS.    SHELLEY.  27 

Q.  Do  you  come  to  Montgomery  voluntarily? — A.  Yes,  sir. 

Cross-examined  by  John  F.  White,  Esq.,  counsel  for  contestee : 

Q.  What  are  the  politics  of  the  inspectors  who  held  that  election? — A.  They  were 
Republicans. 

Q.  You  stated  that  so  many  votes  were  cast  for  James  Q.  Smith  at  that  beat ;  is  that 
an  accurate  statement  t  —A.  It  was  accurate  up  to  the  time  that  I  kept  the  account. 

Q.  How  many  votes  did  Charles  M.  Shelley  receive  during  the  time  you  kept  the 
account  ? — A.  He  received  about  twenty-one  or  two  votes. 

Q.  Did  he  receive  any  after  you  ceased  to  keep  account ;  and,  if  so,  what  is  your  best 
judgment  as  to  the  number? — A.  My  best  judgment  is  that  he  received  a  few  votes. 
I  cannot  state  the  number. 

Q.  Did  you  keep  a  written  memorandum  of  the  votes  cast  there  that  day  ? — A.  I 
kept  a  tally  of  the  votes  as  they  were  cast. 

Q.  Where  is  that  tally-list  ? — A.  Did  not  preserve  it. 

Q.  You  do  not  pretend  to  make  an  accurate  statement  of  all  the  votes  cast  thero 
that  day  and  for  whom  they  were  cast,  do  you  ? — A.  The  account  was  accurate  up  to 
three  and  a  half  o'clock ;  as  to  the  remainder,  I  give  my  best  judgment. 

Q.  Who  was  present  when  Colonel  Holcombe  came  in  and  took  possession  of  that 
box  f— A.  Robert  Dandridge,  Toney  Davis,  Philip  Samuel,  Henry  Green,  Sampson  M. 
Rives,  and  myself. 

Q.  What  kind  of  sachel  was  it  Holcombe  had? — A.  It  looked  like  it  was  made  of 
brown  linen. 

Q.  Where  are  the  parties  you  name  as  having  been  present  when  Holcombe  came  into 
the  room  ? — A.  They  are  all  at  their  homes  in  Lowndes  County,  except  Sampson  M. 
Rives,  who  has  moved  away  since  the  election. 

Q.  Do  you  know  whether  any  or  all  of  them  were  subpoenaed  to  attend  this  com- 
mission ? — A.  I  do  not. 

Q.  State  as  fully  as  you  can  what  conversation  occurred  after  Holcombe  took  pos- 
session of  ihis  box  in  regard  to  his  doing  so. — A.  There  was  a  great  deal  of  confusion 
when  it  was  found  that  a  box  had  been  substituted.  We  protested  against  Holcombe's 
taking  the  box,  and  myself  and  one  of  the  inspectors  caught  hold  of  the  sachel. 

Q.  Did  any  of  the  parties  present  go  out  of  the  room  while  Holcombe  had  possession 
of  the  box  ?— A.  I  went  out,  after  leaving  the  sachel  in  charge  of  one  of  the  inspect- 
ors, who  had  his  hand  upon  it.     Holcombe  had  his  hand  on  it., 

Q.  What  was  the  condition  of  things  when  you  got  back? — A.  I  was  gone  about 
two  or  three  minutes.  I  heard  confusion  at  the  room  door  before  I  got  back.  When 
I  returned  to  the  room  the  sachel  and  proper  box  had  both  been  carried  off  by  Murray. 

Q.  If  these  boxes  were  changed  it  was  done  in  your  absence,  was  it  not? — A.  To 
that  extent,  I  suppose  that  it  was. 

Q.  Did  you  actually  witness  the  changing  of  one  box  for  the  other  ? — A.  I  witnessed 
the  box  being  taken  by  Holcombe  from  the  table,  and  know  that  the  ou'j  he  returned 
to  the  table  was  not  the  one  we  had  in  use  all  day. 

Q.  Did  you  see  Holcombe  take  any  box  at  all  out  of  that  sachel  and  place  it  upon 
that  table? — A.  I  did  not,  but  he  said  in  my  presence  that  he  put  it  on  the  table. 

Q.  To  which  box  did  he  refer? — To  the  box  that  was  substituted  for  the  right 
one. 

Q.  What  has  become  of  that  box  ? — A.  We  forwarded  it  to  the  sheriffby  the  return- 
ing olHcer,  Ed.  Smith. 

i).  Did  you  make  out  any  returns  in  accordance  with  its  contents? — A.  We  wrote  a 
certificate  that  it  was  not  the  proper  box,  and  forwarded  it  with  the  box,  so  that  it 
might  not  be  counted. 

Q.  Did  you  ever  see  or  hear  anything  of  that  box  that  Murray  carried  off  ? — A.  No, 
sir. 

Q.  Were  you  ever  a  member  of  the  legislature  of  Alabama;  and,  if  so,  in  what 
year? — A.  In  1874  I  was  a  member. 

Q.  AVereyou  notdeprived  of  your  seat  by  impeachment ;  and,  if  so,  what  were  the 
charges  against  you  ? — A.  I  was  not  deprived  of  it  by  impeachment. 

Q.  Were  you  not  unseated  by  a  vote  of  the  legislature  for  bribery  ? — A.  I  decline  to 
answer  any  further  questions  on  that  subject,  because  I  don't  think  it  is  right. 

Q.  State,  as  accurately  as  you  can,  the  hour  at  which  the  polls  were  opened  and 
clo-Nt'd  at  Pintlala  beat  that  day. — A.  The  polls  were  announced  opened  at  about  half- 
past  eight  o'clock  and  closed  at  the  hour  designated  bylaw — 5  p.  m. 

Re-examined  by  the  contestant : 

Q.  Did  you  make  any  return  to  Chief  Supervisor  Dimmickof  the  manner  in  which 
the  flection  at  your  beat  was  a  failure,  and  why  it  was  you  were  unable  to  count  the 
vote  *  Does  your  report,  as  made,  contain  a  true  statement  of  the  votes  cast  at  that 
election  for  James  Q.  Smith  for  Congress? 

(Contestee  objects  to  the  question,  upon  the  ground  that  it  calls  for  new  matter  and 
secondary  evidence.) 


28  DIGEST    OF    ELECTION    CASES. 

A.  I  made  a  return  to  Chief  Supervisor  Diinmick  of  the  manuer  in  -which  the  elec- 
tion was  a  failure,  and  vrhy  we  were  unable  to  count  the  vote.  To  the  best  of  niy 
knowledge  and  belief,  my  report  contains  a  true  statement  of  the  votes  cast  for  James 
Q.  Smith  for  Congress. 

W.  D.  GASKIN. 
V  statement  of  inspectors. 

Beat  No.  17.    Pintlala,  Lowndes  Co.,  Ala.,  Nov.  3d,  '60. 

.The  inspectors  of  the  above-named  beat  will  swear  to  the  following  statement,  to 
wit: 

That  they  saw  Col.  E.  P.  Holcomb  in  possession  of  a  satchel  containing  a  cigar-box 
prior  to  the  time  that  the  said  Holcomb  took  charge  of  the  ballot-box,  against  the 
protest  of  the  inspectors  ;  and  that  Gaskin  ordered  the  aforesaid  Holcomb  not  to  pnt 
hands  on  the  box,  when  he,  in  reply  to  Gaskin,  said  the  the  said  Gaskin  has  nothing 
to  do  with  the  box  containing  the  votes  or  anything  else  ;  that  as  U.  S.  supervisor 
could  give  no  orders  nor  handle  any  paper  belonging  to  the  election  ;  but  that  he,  G.,. 
could  only  stand,  look  on,  and  report  how  the  election  was  held,  and  all  that  was  done 
irregular;  and  that  while  the  said  H.  was  saying  this  toG.,  and  asserting  his  right* 
as  an  officer  of  the  election,  notwithstanding  all  that  G.  had  said  to  him  against  tak- 
ing the  box  from  the  table  on  which  it  was,  and  had  been  during  the  election,  the 
said  H.  seized  the  box  and  took  it  from  the  table  and  put  it  into  a  satchel  which  was 
brought  into  the  room  where  the  voting  was  carried  on,  aud  known  as  his  private 
property.  The  box  referred  to  above  was  the  box  in  which  ballots  was  voted  by  the 
people  of  the  precinct  was  deposited.  At  least  three  hundred  and  fifty-four  had 
been  polled  up  to  about  fen  minutes  of  five  o'clock,  when  CA'erybody  desiring  to  vote 
had  voted  ;  and  there  was  no  one  at  the  polls  who  had  not  voted,  and  Col.  H.  put  the 
box  in  the  satchel  above  mentioned.  The  satchel  was  of  a  brown  linen  color,  contain- 
ing a  petition  in  tiie  middle;  and  on  one  side  was  the  box  supposed  to  be  conceal,  and 
on  the  other  side,  which  appeared  to  empty,  he  put  the  box  taking  from  the  table, 
and  when  he  had  done  this  Gaskin  first  took  hold  of  the  satchel  himself,  aud  finding 
afterwards  that  he  was  compelled  to  go  to  himself  a  few  minutes  called  Robert  Dau- 
dridge,  and  made  him  take  hold  of  the  box  in  his  absent,  until  he  could  return,  aud 
as  soon  as  G.  went  out  to  the  door,  he  called  the  marshal,  Wesley  Nolls,  and  place 
him  at  the  door  of  thejelection  room,  and  instructed  said  Nolls,  as  U.  S.  marshal  not 
to  allow  anything  to  be  brought  of  said  room  until  he,  G.",  could  return.  Aud  a  few 
minutes  before  Gaskin  left  the  room,  Tony  Davis,  one  of  the  inspectors,  ask  leaf  of" 
absent  or  leaf  to  step  aside  rather  for  two  or  three  minutes.  As  there  was  no  voting 
going  on,  and  was  not  yet  five  o'clock,  leaf  was  granted  and  Davis  went,  aud  was 
back  in  a  short  time,  and  when  Davis  return  this  was  the  time  that  G.  went  out,  and 
in  short  time  after  Davis'  return  to  the  room,  the  other  inspectors  all  being  in  the 
room,  aud  Mr.  B.  W.  Mason,  also  U.  S.  supervisor,  aud  Col.  E.  P.  Holcomb,  the  alarm 
was  made  that  the  box  containing  the  votes  that  was  put  in  Col.  H.'  sachel  was  out 
of  place  and  that  another  fraudulent  box  was  inserted  in  its  place  on  the  table,  from 
which  the  proper  box  had  been  taken. 

ROBERT  DANDRIDGE. 

PHILIP  S.  SAMUEL. 
his 

TONEY  +  DAVIS. 
mark. 

(Indorsed  :)  AA.  Election  1880,  Lowndes  Countv.  Inspector's  report  at  precinct 
No.  17.  Pintlala  beat.  Rec'd  &  filed  the  19  day  of  Nov.,  1880.  J.  W.  Dinnnick^ 
chief  sup. 

U.  S.  supervisor's  return  of  votes  cast  for  Representatives  in  Congress  from  tlieith  Congres- 
sional district  of  the  State  of  Alabama,  at  precinct  or  poll  No.  17,  commonly  calkd  Pint- 
lala, in  the  county  of  Lowndes,  on  the  2d  day  of  Xovember,  1880. 


■  fe" 

Kames  of  candidates. 

111 

Hi 

|s| 

-"'to 

i§.s 

=  »'a 

^ 

!«; 

James  Q.  Smith 

Charles  M.  Shelley 

William  J.  Stephens 

Total  Congressional  vote 


SMITH    VS.    SHELLEY.  29 

Ballot-box  stolen. 

The  ballots  which  were  cast  at  this  precinct  were  as  follows,  as  nearly  as  I  can 
ascertain : 

For  J.  Q.  Smith,  315  ;  for  C.  M.  Shelley,  35. 

For  full  report,  see  supervisor's  report  marked  AA. 

I,  the  undersigned,  supervisor  of  election,  appointed  by  the  circuit  court  of  the  United 
States,  herebj'  certify  that  the  foregoing  return  is  true  and  correct. 

Witness  my  hand  at  Pintlala,  Ala.,  this  2d  day  of  November,  1880. 

W.  D.  GASKIN,  Supeirisor. 

To  J.  W.  DiMMICK, 

Chief  Supet-visor  of  Elections,  Montgomery,  Ala. 

In  stating  above  that  the  managers  at  the  Pintlala  precinct  made  no  return  of  the 
election,  I  intended  to  say  that  they  made  no  such  count  of  the  votes  or  certificate 
thereof  as  is  contemplated  by  law.  They  did  make  a  certificate,  which  is  in  words 
and  figures  as  follows,  to  wit:  "We,  the  undersigned,  managers  of  Pintlala  beat,  do 
hereby  certify  that  there  is  three  hundred  and  fifty-five  tickets  in  the  box,  and  the 
poll-list  shows  three  hundred  and  fifty-four,  and  we  do  not  believe  that  the  box  con- 
taining such  tickets  is  the  correct  box." 

TONEY  DAVIS, 
PHILLIP  SAMUEL, 
ROBERT  DANDRIDGE, 

Managers. 

The  foregoing  is  the  only  certificate  made  by  said  managers  as  far  as  I  know  or  have 
been  informef*. 
Xov.  3d,  1880. 

B.  W.  MASON, 
Supervisor  of  Elections  for  I7th  Precinct  (Pintlaltf),  Lowndes  Co.,  Ala. 

This  certificate  is  found  with  Mr.  Dimmick,  chief  United  States  su- 
pervisor, and  indeed  there  is  no  evidence  which  materially  contradicts 
the  facts  above  stated.  Mr.  Smith  should  have  counted  for  him  the  315 
votes  cast. 

Your  committee  state  that  it  would  swell  this  report  to  undue  propor- 
tions to  give  in  detail  the  evidence  showing  the  fraud,  collusion,  and 
bad  faith  of  those  managing  the  elections  for  the  contestee,  and  must 
state  as  briefly  as  possible  the  true  state  of  the  votes  at  the  other  dis- 
puted precincts,  as  shown  by  the  evidence. 

Whitehall  precinct,  Lowndes  County,  Smith,  had  276.' 

Hopewell  precinct,  Lowndes  County,  Smith  had  116. 

Benton  precinct,  Lowndes  County,  Smith  had  156. 

In  these  precincts  the  Democratic  inspectors  failed  to  appear,  except 
at  Whitehall,  and  returns  rejected  because  of  informality,  but  should  be 
counted  for  contestant.  Prairie  Bluflf  precinct,  Wilcox  County,  Smith 
had  305  and  Shelley  35 ;  this  vote  rejected  for  the  reason  that  the  name 
of  the  pi-ecinct  did  not  appear  in  the  return,  and  yet  the  following  is  the 
return  of  the  supervisor  of  that  precinct : 

r.  S.  supervisor's  return  of  votes  cast  for  Representatives  in  Congress  from  the  fourth  Con- 
gressional district  of  the  State  of  Alabama,  at  precinct  or  poll  JSo.  4,  commonly  called 
Prairie  Bluff,  in  the  county  of  Wilcox,  Ala.,  on  the  2d  day  of  November,  1880. 


Names  of  candidates. 


James  Q.  Smith 305 

Charles  M.  Shelley I  23 

Total  Congressional  vote i        328 


Not  counted.     (See  evidence.) 


30  DIGEST    OF    ELECTION    CASES. 

I,  the  undersigned,  supervisor  of  election,  appointed  by  the  circuit  court  of  the 
United  States,  htreby  certify  that  the  foregoing  return  is  true  and  correct. 
Witness  my  hand,  "at  Prairie  Bluff,  Ala.,  this  2d  day  of  November,  1880. 

T.  J.  SYKES, 

Supervisor. 

Your  committee  cannot  think  that  the  Democratic  supervihoi\s  re- 
jected this  through  ignorance  of  the  law,  but  in  violation  of  tbe  same^ 
and  these  votes  should  be  given  to  Mr.  Smith,  as  the  electors  intended 
them. 

NEWBURN  PRECINCT,   HALE  COUNTY. 

The  following  is  the  evidence  of  the  United  States  supervisors  of  this 
precinct,  and  which  is  corroborated  by  other  and  competent  evidence, 
and  the  evidence  of  the  actual  vote  will  be  found  as  follows:  M.  House, 
pp.  300-305;  exhibits,  pp.  429-431;  E.  J.  Saunder,  pp.  305,308;  ex- 
hibits, pp.  318-321;  Lawson  Hill,  pp.  308,309;  exhibits,  321,322; 
Granville  Thompson,  pp.  312,  313;  exhibits,  323. 

Merritt  House,  United  States  supervisor: 

Q.  Were  you  present  all  day  of  the  election,  and  did  you  carefully  scrutinize  the 
manner  of  depositing  the  ballots  and  the  counting  of  the  samet — A.  I  was  present 
all  the  day  of  the  election,  and  I  carefully  scrutinized  the  manner  of  depositing  the 
ballots  and  also  the  counting  of  the  same. 

Q.  State  fully  and  particularly  all  that  was  done  and  said  after  the  polls  were 
closed  in  reference  to  the  counting  of  ballots  by  the  inspectors,  giving  the  name  of 
each  inspector  or  person  who  took  any  part  or  said  anything  about  the  counting  of 
the  ballots,  and  anything  else  that  transpired  in  reference  fliereto  on  that  day. — A. 
When  the  polls  were  closed,  the  inspectors,  Mr.  WyleyCroora,  Noah  Huggins,  wanted 
to  take  the  ballot-box  Irom  the  room  in  which  we  had  held  the  election  into  an  office 
outside  of  the  room  and  building  where  we  held  the  election;  to  this  I  objected,  and 

insisted  upon  counting  the  ballots  there.     To  this  Mr.  Croom  said  he  would  be  d d 

if  he  didn't  do  it.  By  this  time  it  had  got  dark  inside  the  room,  and  I  said,  "  If  you 
will  go  in  there  I  will  take  the  box  and  carry  it  along.''  Mr.  Huggins  says,  "  You  "put 
that  box  down,  by  God ;  Mr.  Croom  is  the  man  to  carry  that  box."  I  then  put  the  box 
down;  Mr.  Croom  then  took  the  box  up,  put  the  papers— ;poll-li8t — on  top  of  the  box;  then 
we  started  from  the  front  of  the  store  to  go  out  of  the  store  at  the  back  door,  and  before 
getting  to  the  back  door  Mr.  Croom  and  Mr.  Huckleby,  one  of  the  clerks,  went  behind  a 
hay  pile.  Robert  Lee,  the  colored  inspector,  said,  "  What  are  you  all  going  around  there 
for?  You  know  you  can't  get  out  there."  Mr.  Croom  said,  "  Oh,  that  is  so;  aud  they 
then  turned  and  came  back  and  got  to  the  right  side  of  this  hay,  where  there  was  a  door, 
and  we  could  see,  and  Mr.  Johnny  Huckleby  had  the  box.  Robert  Lee,  the  colored  in- 
spector, says,  "What  are  you  doing  with  the  box,  Mr.  Huckleby?"  Mr.  Huckleby 
said  Merritt  saw  him  pick  the  box  up  off  the  counter :  witness  is  Merritt.  I  said,  ''No, 
sir;  it  was  not  you  picked  it  up;  it  was  Mr.  Croom."  To  this  there  was  no  reply, 
and  they  then  walked  out  into  the  next  room.  When  we  got  into  the  next  room' I 
said,  "I  am  not  satisfied  about  this  box."  Mr.  Huckleby  tried  to  dra%v  my  attentiou 
on  to  another  subject.  Then  we  commenced  counting,  and  counted  a  good  many 
tickets.  I  then  discovered  that  this  was  the  wrong  box.  I  had  marked  the  box  in 
the  polling  room  with  a  straight  mark,  with  my  knife,  under  the  lock,  and  Bob  Lee 
made  a  mark  across  my  mark,  and  the  one  we  had  in  there  had  no  mark  on  it.  I  then 
got  up  and  said,  "There  are  illegal  tickets  here;  I  thought  something  would  be 
wrong,  was  my  reason  for  not  wanting  to  come  in  here."  I  then  went  outdooi's,  aud 
tried  to  go  back  in  the  room  where  we  had  been  all  day.  I  was  told  that  the  key 
was  lost,  and  they  wanted  to  know  what  I  wanted  to  go  in  there  for;  I  told  them  I 
wanted  to  go  in  there  to  get  the  right  box  ;  that  the  one  they  had  counting  the  tick- 
ets out  of  was  an  illegal  box.  Mr.  Croom  and  Lewis  Turpin  let  me  go  into  the  sture- 
room  in  the  front,  and  then  I  asked  to  go  back  to  the  hay  pile,  and  they  would  not 
let  me  go,  saying  that  that  was  his  private  room;  they  then  made  me  come  out  of  the 
store.  Noah  Huggins,  one  of  the  inspectoi-s,  then  threatened  to  shoot  me,  and  I  said, 
"  Gentlemen,  if  I  cannot  count  the  right  box,  I  will  go  home  ;  "  and  then  I  left.  This 
was  about  nine  o'clock  p.  m. 

None  of  these  votes  counted  for  Smith,  although  honestly  cast  for 
him,  and  he  should  have  them  counted  for  him,  and  your  committee  so 
find,  as  they  are  convinced  that  not  to  do  so  would  be  an  outrage  upou 


SMITH    VS.    SHELLEY. 


31 


the  rights  of  both  the  electors  and  contestant.  We  find  the  following 
votes  cast  for  Mr.  Smith  at  the  several  precincts  named  below,  and 
fraudulently  rejected  b^-  the  precinct  inspectors  : 

Walthal's  precinct,  Perry  County 18& 

Scott's  precinct,  Perry  County 274 

Cunningham's  precinct,  Perry  County 180 

Hamburg  precinct.  Perry  County 250 

Marion  precinct,  Perry  County 238 

1,128 

These  votes  should  be  given  to  Mr.  Smith,  as  the  evidence,  in  the  opin- 
ion of  your  committee,  abundantly  shows. 

Your  committee  further  find  that  the  United  States  supervisors'  re- 
turn of  votes  cast  for  Representative  in  Congress  from  the  fourth  dis- 
trict of  the  State  of  Alabama,  election  held  on  the  2d  day  of  November,. 
1880,  composed  of  Dallas,  Lowndes,  Perry,  Hale,  and  Wilcox  Counties,, 
was  as  follows,  to  wit: 

RECAPITULATION. 


Counties. 

ll 

si 

15 

Dallas        ..           

• 

1,544 
1,514 
1,316 

1,222 
1,185 

3  17» 

2,354 
2  507 

Hale 

1  054 

Wilcox --   ---      --- --- 

1,  78& 

Total 

6,781 

10,87» 

Smith  received  4,097  votes  majority  over  Shelley,  according  to  the 
returns  made  by  the  United  States  supervisors,  as  shown  above. 

Your  committee,  however,  aside  from  this,  find  from  the-  evidence  that 
the  statement  of  the  true  vote  is  as  follow^  : 

Contestant  is  returned  as  having  received  at  said  election 6, 650 

To  which  add  from  Dallas  County,  as  hereinbefore  set  out 2, 158 

From  Lowndes  County,  as  stated 868 

From  Wilcox  Counly,  as  stated 305 

From  Hale  County,  as  stated 398 

From  Perry  County,  as  stated 1, 128 

Total 11,507 

The  contestee  is  returned  as  having  received  a  total  vote  of  (see  Record, 

page  170) 9,301 

Add  ballots  cast  for  contestee  and  thrown  out  by  the  board  of  county  super- 
visors, viz  : 

Prairie  Bluft" precinct,  Wilcox  County 24 

Cahaba  precinct,  Dallas  County 11 

Fine  Flat  precinct,  Dallas  County 25 

Mitchell's  precinct,  Dallas  County 1 

River  precinct,  Dallas  County 1 

Martin's  precinct,  Dallas  County 16 

Pintlala  precinct,  Lowndes  County 40 

White  Hall  precinct,  Lowndes  County 14 

Hopewell  precinct,  Lowndes  County 17 

Newbern  precinct.  Hale  County 103 

252 

Contestee's  assumed  vote 9,553 


32  DIGEST    OF    ELECTION    CASES. 

Deduct  from  the  above  assumed  vote  of  contestee  the  followiug  votes  fraudu- 
lently counted  for  contestee  by  the  precinct  inspectors,  viz  : 

Walthal's  precinct,  Perry  County 181 

Cunningham's  precinct,  Perry  County' 170 

Scott's  precinct,  Perry  County 190 

Hamburg  precinct,  Perry  County 167 

Marion  precinct,  Perry  County ..141 

849 

Contestee's  vote 8, 704 

In  the  above  precincts  of  Perry  County  the  ballot-boxes  were  stuffed 
and  the  vote  changed. 

Contestant's  vot«,  as  shown 11, 507 

Contestee's  vote,  as  shown , 8,704 

Contestant's  majority , 2,803 

Your  committee  further  find  that  on  the  morning  of  the  election  the 
Democratic  inspectors  of  Burnsville  precinct,  in  Dallas  County,  did  not 
open  the  polls  and  failed  to  appear.  The  citizens  being  mostly  colored 
men,  came  before  9  o'clock  a.  m.,  to  the  number  of  over  or  about  400 
voters,  for  the  purpose  of  voting,  but  were  discouraged  by  beinginformed- 
that  an  election  in  the  absence  of  inspectors  would  be  illegal.  A 
delegation  of  them  went  several  miles  to  seek  legal  advice,  and  after  do- 
ing so  came  back  and  was  about  to  open  the  polls,  and  was  then  informed 
that  they  could  not  do  so,  because  the  hour  of  9  o'clock  a.  m.  had  passed , 
and  no  election  could  be  held  or  polls  opened  after  that  time ;  no  poll- 
boxes  were  furnished  or  blanks  for  returns.  They  then  organized,  and 
a.  list  of  the  names  of  voters  in  the  precinct  was  taken,  and  an  ex- 
pression of  preference  from  each  as  to  his  choice  for  Representative  in 
Congress,  and  that  300  registered  and  expressed  their  choice  as  being 
Mr.  c>mith,  while  not  one  expressed  a  willingness  to  vote  for  Mr.  Shelley. 
But  as  no  polls  were  in  fact  opened,  and  no  ballots  cast,  j^our  committee, 
•while  they  believe  these  electors  have  been  deprived  of  their  votes  fraud- 
ulently, cannot  allow  them. 

In  conclusion,  your  committee  state  that  they  have  but  little  pleasure 
in  reporting  the  facts  which  the  evidence  in  this  case  discloses,  as  such 
acts  must  be  and  remain  a  blot  upon  our  boasted  civilization  ;  and  a  more 
deliberate,  wanton,  barefaced,  and  cruel  fraud  was  never  practiced  upon 
a  people  guaranteed  by  the  laws  of  our  common  country  the  right  to 
cast  a  free  ballot  and  have  it  honestly  counted.  And  while  it  is  true 
that  many  of  them,  and,  indeed,  most  of  them,  were  colored  men  and 
uneducated  men,  yet  it  strikes  your  committee  as  being  the  acme  of 
cruelty  for  those  who  have  practiced  these  frauds  and  wrongs  upon 
them  to  palliate  the  fraud  or  excuse  themselves  because  of  such  igno- 
rance, seemingly  forgetting  what  all  civilized  people  remember,  that  it 
was  their  own  deliberate  act  that  made  them  so,  and  by  solemn  enact- 
ment of  State  laws  made  it  a  felony  to  attempt  the  task  of  teaching 
them  ;  but  neither  law  nor  common  ordinary  fairness  would  permit  the 
conspirators  to  reap  the  rewards  or  benefits  of  their  own  wrong.  The 
very  ignorance  they  charge  should  be,  and  is,  to  every  honest,  humane 
man  a  strong  and  controlling  reason  why  extraordinary  efforts  should  be 
made  to  guard  the  rights  of  those  dependent  upon  them;  and  if  a  com- 
munity will  not  do  so,  the  laws  of  a  common  country  will. 

And  to  that  end  your  committee  submit  the  following  resolutions  and 
ask  their  adoption  : 

Resolved,  That  Charles  M.  Shelley  is  not  entitled  to  a  seat  in  the  For- 
ty-seventh Congress,  and  was  not  elected  thereto  from  the  fourth  Con- 
gressional district  in  the  State  of  Alabama. 


SMITH    VS.    SHELLEY.  33 

Resolvedy  That  James  Q.  Smith  was  duly  elected  a  member  from  the 
fourth  Con<?ressional  district  of  the  State  of  Alabama  to  a  seat  iu  the 
Forty-seveuth  <Jongress,  and  is  entitled  thereto. 


views  of  me.  ranney. 

James  Q.  Smith,   contestant,   vs.  Charles  M.  Shelley,  con- 
TESTEE. — Forty-seventh  Congress. 

,  AS  TO  MOTION   OF   CONTESTANT. 

• 

The  contestant  on  the  hearing  of  this  case  before  the  subcommittee 
moved  to  suppress  and  strike  from  the  record  the  testimony  taken  by 
thfe  contestee  of  J.  S.  Muchat,  William  H.  Dillard,  Simpson  Jones,  Will- 
iam B.  Gilmer,  Wilson  Harris,  M.  A.  Graves,  F.  M.  Sullivan,  and  B. 
W.  Mason,  taken  by  Ben.  De  Lemos,  and  the  testimony  of  Ben.  De 
Lemos  taken  by  H.  W.  Caffey,  for  the  reasons  set  forth  in  contestant's 
statement  (Eecord,  page  217),  and  to  the  testimony  of  said  witness  taken 
by  said  De  Lemos,  why  stjies  himself  notary  public,  because  he  does 
not  authenticate  by  a  seal  his  official  position  (McCrary  on  Election 
Contests,  page  336 ;  Code  of  Alabama,  sec.  1330,  page  424).  "  For  the 
authentication  of  his  official  acts,  each  notary  public  must  provide  a 
seal  of  office,  which  must  present  by  its  impression  his  name,  office, 
State,  and  county  for  which  he  was  appointed."  And  for  a  further  rea- 
son the  contestant  moved  as  aforesaid,  because  neither  the  certificate 
nor  the  oath  administered  is  according  to  law. 

And  it  appearing  that  no  sufficient  or  proper  notice  was  served  upon 
contestant,  so  he  had  no  opportunity  to  be  present  and  cross-examine 
the  witnesses,  as  is  shown  by  the  deposition  of  contestant,  which  is  not 
controverted — 

It  is  my  opinion  that  said  motion  might  properly  be  granted  for  some 
of  the  reasons  stated,  and  that  all  of  said  proof  taken  by  contestee  of 
said  witnesses  be  stricken  from  the  record*  in  this  case.  But  I  do  not 
deem  it  necessary  to  grant  the  said  motion.  1  prefer  rather,  without 
passing  upon  all  the  questions  involved,  as  they  are,  some  of  them,  tech- 
nical, to  make  all  proper  allowances  for  the  evidence  taken,  in  view  of 
the  fact  that  contestant  had  no  opportunity  to  cross-examine  the  wit- 
nesses, and  they  were  not  cross-examined,  in  fact,  because  of  the  want 
of  proper  notice. 


James  Q.  Smith,*  contestant,   vs.  Charles   M.   Shelley,  con- 
testee.— Forty-seventh  Congress. 

Contested  election  from  the  fourth  Congressional  district  of  Alabama. 
Election  held  on  the  2d  day  of  November,  A.  D.  1880. 

The  Committee  on  Elections.,  to  whom  was  referred  the  contested-election 
case  of  James  Q.  Smith  against  Charles  M.  Shelley,  from  the  fourth 
Congressioyial  district  of  Alabama,  election  held  on  the  2d  day  of  No- 
twmber,  A.  D.  1880,  having  had  the  same  under  consideration,  beg  leave 
to  submit  the  following  report  : 

From  the  record  testimony  in  the  case,  it  appears  the  counties  of 
H.  Mis.  35 3 


84  DIGEST    OF    ELECTION    CASES. 

Dallas,  Lowndes,  Hale,  Wilcox,  and  Perry  make  up  the  fourth  Con- 
gressional district  of  Alabama;  that  the  electors  of  each  of  said  coun- 
ties are  chiefly  of  the  African  race,  and,  as  would  seem,  cast  Eepubliban 
ballots  for  their  party  candidates  to  the  extent  of  from  95  to  97i  ]>er 
cent,  of  their  vote  when  permitted  to  do  so ;  that  the  electors  in  each  of 
said  counties  are  largely  Eepublican  in  politics,  and  in  the  district,  the 
five  counties  combined,  have  a  joint  Eepublican  majority  of  at  least 
15,000  votes ;  that  the  white  electors  in  each  county  of  the  district  chiefly 
cast  Democratic  ballots  for  their  party  candidates.  (Eecord,  Eaj)ier's 
ev.,  pp.  151-155;  McDuflfie,  211-216  ;  Eecord,  pp.  169, 170.) 

The  evidence  given  upon  some  of  the  general  facts  stated  above  is  a 
matter  of  opinion,  it  is  true,  but  the  same  comes  from  men  apparently 
well  able  to  judge,  and  is  not  controverted  by  other  evidence. 

It  has  been  stated,  and  is  notorious  as  matter  of  history,  as  claimed 
by  contestant,  that  when  the  Democratic  party  came  into  power  in  1874 
the  work  of  reorganizing  the  Congressional  districts  was  speedily  com- 
menced, the  object  being  to  make  all  the  districts  Democratic.  After 
the  most  laborious  and  careful  investigation  of  this  matter,  it  was  found 
impossible  to  do  so,  and  it  was  then  considered  best  to  put  into  one  dis- 
trict all  the  large  Eepublican  counties  adjoining  each  other,  to  be  called 
the  fourth  Congressional  district  of  Alabama.  The  acknowledged  Ee- 
publican majority  in  Dallas  County  was,  at  the  State  election  of  1874, 
4,957 ;  in  Hale  County,  2,304 ;  in  Lowndes  County,  2,953 ;  in  Wilcox 
County,  2,126;  in  Perry  County,  2,606;  making  a  clear  Eepublican 
majority  in  the  district  of  14,946  votes.  At  the  Presidental  election  in 
1876  Hayes,  Eepublican,  received  a  majority  over  Tilden,  Democrat,  of 
9,446  votes ;  and  in  the  same  year,  in  the  State  election,  Woodruff,  In- 
dependent, receiving  Eepublican  support,  had  a  majority  over  Houston, 
Democrat,  for  governor,  of  9,115  votes.     (Eecord,  p.  170.) 

In  the  Congressional  election  of  the  same  year  Eapier,  running  as 
the  regular  Eepublican  nominee,  and  Haralson,  running  as  a  boltiug 
candidate  (both  persons  of  the  negro  race),  the  joint  majority  over 
Shelley,  Democrat,  was  6,256  votes.  The  census  returns  of  1880  show 
that  there  are  now  in  the  counties  composing  the  district  135,881  i»er- 
sons  of  the  negro  race,  and  32,855  white  persons,  disclosing  a  very  large 
increase  of  the  negro  race,  so  that  on  a  calculation  it  may  be  assumed 
that  there  is,  in  fact,  now  a  majority  of  18,000  negro  Eepublican  voters 
over  white  Democratic  voters  in  the  district.  (Eecord,  pp.  169,  170, 
178.) 

Under  the  election  law  of  Alabama  it  is  made  the  duty  of  the  judge 
of  the  probate  court,  the  clerk  of  the  circuit  court,  and  the  sheriff"  of  each 
county,  thirty  days  prievious  to  any  election,  to  designate  three  inspect- 
ors to  hold  an  election  in  each  voting  precinct,  two  of  which  shall  be 
members  of  opposing  political  parties.  The  sheriff  is  made  county  return- 
ing officer,  and  it  is  made  his  duty  to  send  to  each  of  the  precincts  in  the 
county  ballot-boxes  for  the  purposes  of  the  election,  and  he  is  the  peace- 
oflficer  who  is  to  be  present,  in  person  or  by  deputy,  at  each  election 
precinct.     (Ala.  Code,  §  258,  art.  2 ;  sec.  259.) 

It  appears  that  the  judge  of  the  probate  courts  the  clerk  of  the  circuit 
court,  and  the  sheriff',  whose  duty  it  was  to  appoint  precinct  inspectors 
of  election,  in  all  of  said  counties,  were  Democrats  in  politics  and  sup- 
porters of  the  contestee ;  and  the  same  officers  are  by  law  made  the 
county  supervising  board  to  canvass  the  returns  made  by  the  precinct 
inspectors  of  election  appointed  by  themselves. 


SMITH    VS.    SHELL  LY.  35 

DALLAS   COUIN'TY. 

It  ai)pears  that  previous  to  the  election  the  officers  whose  dnty  it 
was  ro  appoint  precinct  inspectors  in  Dallas  County,  one  of  whom 
should  be  of  the  opposing  political  party,  were  notified  in  writing-  and 
requested  to  obey  the  election  law  of  Alabama  in  this  respect,  and 
give  an  opportunity  to  suggest  some  suitable  men  to  act  for  the  Ee- 
publican  party,  but  they  refused  to  do  so.  One  of  them  (the  sheriff) 
stated  "that if  he  received  forty  such  notices  he  would  pay  no  attentioa 
to  them."     (Depositions  of  Eoundtree  and  Judge  Wood.) 

It  appears  that  in  seven  precincts  of  Dallas  County,  to  wit,  Pine 
Flat,  Kiver,  Mitchell's,  Chillatchie.  Cahaba,  Martin's,  and  Lexington, 
about  which  testimony  has  been  taken,  and  for  each  of  them  three  in- 
spectors were  appointed,  two  of  whom  were  white  Democrats  and  one 
a  negro,  who  was  supposed  to  be  a  Eepublican  on  account  of  his  color 
that  of  the  two  white  Democraticinspectors  for  each  oftheserew  precincts 
it  appears  that  they  were  not  present  on  the  morning  of  the  election  to 
open  the  polls,  and  the  white  Democratic  inspectors,  appointed  by 
county  authority,  failing  to  be  present,  the  colored  electors  present,  un- 
der the  election  statute  of  Alabama,  opened  the  polls  and  held  elections 
in  said  precincts;  that  the  returns  made  of  the  result  to  the  board  of 
county  supervisors  in  Cahaba,  Pine  Flat,  Mitchell's,  River,  Lexington,, 
and  Martin's  were  not  in  statutory  form,  and  were  for  informality  re- 
jected, and  the  vote  not  counted  by  the  boartl  of  county  supervisors,, 
and  that  the  sheriff',  the  returning  officer,  refused  to  receive  the  ballot- 
box  from  Chillatchie  precinct  because  it  was  a  cigar-box,  and  it  was 
not  before  the  supervising  board.     (Record,  p.  133.) 

It  appears  that  no  box  was  furnished  as  required  by  law.  (Rec,  p. 
141.)  The  sheriff"  swears  that  he  sent  boxes.  If  he  did  the  Democratic 
inspectors  had  them  probably  and  did  not  produce  them,  as  they  did 
not  act. 

The  returns  being  informal,  irregular,  and  insufficient,  and  therefore 
defective,  went  for  nothing,  and  the  votes  cast  not  being  counted  for 
the  contestant  or  the  contestee,  and  the  ballo't^box  from  Chillatchie  not 
being  received,  evidence  is  resorted  to  to  prove  the  actual  vote,  under 
the  well  recognized  and  settled  rule  stated  by  McCrary  in  his  work  on. 
Contested  Election  Cases  (sec.  302,  page  268  and  9;  Littlefield  vs.  Greea 
(1  Chicago  Legal  Xews,  230);  Brightley's  Election  Cases,  493;  Mc- 
Kenzie  rs.  Braxton,  Forty-second  Congress ;  Giddings  vs.  Clark,  Forty- 
second  Congress.  (See  sec.  304,  p.  270,  and  sec.  81.,  p.  104,  McCrary  on 
Contested  Election  Cases.)  In  Alabama,  where  this  contested-election 
case  arose,  the  supreme  court  of  that  State  lay  down  the  law  of  con- 
tested elections  as  follows : 

It  is  the  election  that  entitles  the  party  to  office,  and  if  one  is  legally  elected  by  re- 
ceiving a  majority  of  legal  votes,  his  right  is  not  impaired  by  any  omission  or  negli- 
gence of  the  managers  subsequent  to  the  election.  (State  ex  rel.  Spence  vs.  The  Judge 
of  the  Ninth  Judicial  Circuit,  13  Ala.  Rep,,  805.) 

Nor  will  a  mistake  by  the  managers  of  the  election  in  counting  the  votes  and  declar- 
ing the  result  vitiate  the  election.  Such  a  mistake  may  and  should  be  corrected  ;  the 
person  receiving  the  highest  number  of  votes  becomes  entitled  to  the  office,  (State 
ex.  rel.  Thomas  vs.  Judge  of  the  Circuit  Court,  9th  Ala.  Rep.,  338.) 

The  returns  from  Pine  Flat,  River,  Mitchell's,  Cahaba,  Martin's,  and 
Lexington  precincts  of  Dallas  County  being  declared  irregular  and  in- 
formal, as  not  coming  up  to  statutory  requirements,  were  not  counted- 
by  the  board  of  county  supervisors  for  either  candidate  for  Congress,  and 
the  ballot-box  from  Chillatchie  precinct  being  refused  by  the  sheriff 
was  not  before  the  board  of  county  supervisors  and  was  not  counted  by 
them ;  therefore,  in  such  a  case  each  candidate  was  required  to  prove  the 
actual  number  of  ballots  cast  for  him.    The  contestant  introduces  proof 


-     * 

56  DIGEST    OF    ELECTION    CASES. 

as  to  the  number  of  ballots  cast  for  him  at  each  of  the  i)recinctsof  Pine 
Flat,  River,  Cahaba,  Mitchell's,  Chillatchie,  Martin's,  and  Lexington ;  the 
-contestee  introduces  no  proof  whatever  to  rebut  the  proof  made  by  the 
contestant  in  this  respect,  nor  does  he  show  by  any  proof  that  he  had 
-any  ballots  cast  for  him  for  Congress,  except  from  the  evidence  taken 
l)y  contestant. 

The  x>roof  does  not  show  that  the  sheriff  was  present  in  person  or  by 
deputy  at  any  of  the  seven  precincts  referred  to,  and  it  is  shown  that 
every  white  Democratic  insjiector  appointed  by  the  board  of  county  su- 
pervisors failed  to  appear  and  open  the  polls  and  hold  an  election,  and 
neither  of  the  Democratic  United  States  supervisors  appointed  hj  the 
United  States  circuit  court,  on  the  petition  of  ten  Democratic  citizens 
of  the  county,  appeared  at  the  said  election  precincts,  except  the  Demo- 
cratic United  States  supervisor  at  Pine  Flat  precinct,  and  his  report  to 
the  chief  supervisor  of  elections  agreed  with  the  report  of  the  Repub- 
lican United  States  supervisor. 

It  appears  that  the  county  board  of  supervisors  of  Dallas  County, 
the  largest  Republican  county  in  the  district,  appointed  two  intelligent 
Democrats,  supporters  of  the  contestee,  and  although  requested  in 
writing  refused  to  appoint  one  intelligent  member  of  the  opposing 
political  party,  but  did  appoint  one  ignorant  negro  supposed  to  be  a 
Republican  on  account  of  his  color,  to  serve  as  precinct  inspectors,  and 
that  the  two  white  inspectors  did  not  appear  at  the  election  place  to 
open  polls  and  hold  an  election,  leaving -the  ignorant  negro  inspector 
to  organize  a  board  of  inspectors  from  the  negro  electors  present ;  and 
from  the  fact  that  the  polls  were  opened  and  elections  were  held  by  the 
uneducated  negro  qualified  electors  of  said  precincts,  and  from  the 
further  fact  that  the  statement  of  the  vote  cast,  and  the  returns  thereof, 
were  held  to  be  irregular,  informal,  and  insufficient,  and  therefore  not 
considered  nor  counted  by  the  board  of  supervisors,  because  they  were 
not  technically  in  accordance  with  the  election  law,  we  are  reluctantly 
impelled  to  the  conclusion,  particularly  as  each  of  said  precincts  is 
largely  Republican  in  politics,  that  there  must  have  existed  a  well 
planned  and  previously  arranged  conspiracy  on  the  part  of  the  Demo- 
cratic election  managers,  by  the  absence  of  the  Democratic  precinct  in- 
spectors at  the  election  place  on  the  day  of  election,  to  have  no  polls 
opened,  and  if  opened  under  the  election  statute  by  the  uneducated 
negro  electors,  then  they  hoped  the  statutory  statement  of  the  election 
returned  to  the  board  of  supervisors  would  be  defective  in  form,  and  in 
either  event  there  would  be  a  pretext  or  sufficient  excuse  for  not  con- 
sidering the  vote;  but  such  a  scheme,  if  formed,  cannot  be  allowed  to 
be  successful,  as  the  committee  have  no  difficult^^  on  the  proof  in  find- 
ing that  an  election  was  held  according  to  law  and  what  the  vote  actually 
was.    (Code  of  Alabama,  section  262.) 

I  therefore  find,  as  matter  of  fact,  that  the  ballots  legally  cast,  but 
not  counted  for  contestant  and  contestee  in  the  said  seven  precincts  of 
Dallas  County,  and  which  should,  as  matter  of  law,  be  counted  for  them 
in  this  contest,  are : 

For  contestant.    For  contestee. 

Pine  Flat  precinct 280  25 

River  precinct 314  1 

Cahaba  precinct 376  11 

Mitchell's  precinct 360  1 

Chillatchie  precinct 124  0 

Martin's  precinct 384  16 

Lexington  precinct 320  0 

Total 2,158  54 


SMITH    VS.    SIIELT.EY.  37 

RECAPITULATION. 

For  contestant 2, 158 

For  contestee '. 54 

LOWNDES  COUNTY. 

It  appears  from  tbe  proof  in  reference  to  the  j^recincts  of  Pintlala, 
Whitehall,  Hopewell,  and  Benton,  in  Lowndes  County,  that  the 
Democratic  inspectors,  appointed  by  the  board  of  county  supervisors, 
failed  to  apjiear  and  hold  the  elections,  except  at  Whitehall  precinct. 
At  Hopewell  the  ballots  cast  for  each  candidate  were  not  counted  by 
the  board  of  county  supervisors.  The  contestant  proves  that  he  had  • 
cast  for  him  110  ballots,  and  that  contestee  had  cast  for  him  17  ballots. 
The  returns  of  this  precinct  were  excluded  for  irregularity  and  infor- 
mality, and  come  under  the  ruling  heretofore  made,  that  ballots  legaJly 
cast  should  be  counted  as  cast  notwithstanding  the  action  of  the  pre- 
cinct inspectors. 

(See  record.  Testimony  of  Willis  Knight,  pp.  195-198;  Allen  Hin- 
son,  pp.  198,  199 ;  Exhibit,  p.  334;  J.  V.  xMcDuffie,  pp.  211-216.  Con- 
testee's  witnesses:  S.  Jones,  pp.  546,  547;  M.  A.  Graves,  pp.  549-551; 
F.  M.  Sullivan,  p.  551.) 

The  evidence  as  to  this  precinct  is  conflicting.  Only  two  inspectors 
acted,  as  no  others  would  serve.  The  Democratic  inspectors  would 
not  serve,  although  present.  Their  evide'hce  is  to  be  taken  with  allow- 
ance. 

It  appears  that  at  the  election  in  Benton,  in  the  same  county,  the 
appointed  Democratic  inspectors  present  on  the  morning  of  the  elec- 
tion refused  to  open  the  polls  and  hold  an  election,  stating  it  was  too 
late  to  open  the  polls.  The  hour  of  nine  o'clock  having  arrived,  the 
Republican  colored  electors  present,  seeing  that  no  election  was  to  be 
held,  organized,  under  the  election  law  of  Alabama,  and  held  the  elec- 
tion, which  resulted  in  having  cast  for  the  contestant  156  ballots.  The 
appointed  Democratic  insi)ectors,  who  said  it  was  too  late,  and  said 
there  would  be  "no  election  that  day  for  Garfield  or  Hancock,"  opened 
a  second  polling  place  and  hehl  an  election,  where  51  ballots  were  cast 
for  contestee.  The  box  from  this  second  polling  place  was  received  by 
the  county  returning  oflicer  (the  sherifl"),  and  the  box  containing  the 
156  ballots  cast  for  contestant  was  rejected  by  the  sheriff  and  not 
counted  by  the  board  of  county  supervisors.  The  contents  of  the  ballot- 
box  are  exhibited  in  the  record.  We  hold,  as  matter  of  law,  that  the 
sheriff  should  have  received  the  ballot-box  and  permitted  it  to  go  before 
the  board  of  county  supervisors;  and  further,  as  matter  of  law,  that 
after  the  first  election  polls  were  opened  the  second  polls  were  not 
authorized,  and  should  not  be  recognized,  and  therefore  the  156  ballots 
cast  at  the  first  polling  place  should  be  counted  for  contestant.  The 
United  States  supervisors  cannot  be  present  where  precincts  are  multi- 
plied; it  would  be  a  dangerous  power,  and  may  be  used  for  the  pur- 
poses of  corruption.  (McCrary  on  Election  Contests,  sec.  108,  pp.  120, 
121;  Sloan  vs.  Rawles,  Forty-second  Congress;  see  record,  testimony  of 
R.  S.  Abbott,  pp.  185-188;"^  Exhibit,  pp.  329,330;  A.  J.  Edwards,  pp. 
188-193;  Exhibit,  p.  174;  George  Torrance,  pp.  193-195;  J.  V.  McDuf- 
fle,  pp.  211-216;  contestee's  witness,  M.  A.  Graves,  pi).  549,550;  super- 
visors return,  329.) 

At  the  election  in  Whitehall  precinct,  in  the  (county  of  Lowndes,  the 
uncontradicted  testimony  shows  that  there  were  cast  for  contestant  276 
ballots,  and  for  the  contestee  14  ballots,  and  it  also  appears  that  the  pre- 


24807'8 


38  DIGEST  OF  ELECTION  CASES. 

oinct  returning  officer  took  the  ballot-box  used  for  the  purposes  of  the 
election  to  the  sherili",  the  county  returning  officer,  who,  being  informed 
of  the  vote  cast  for  each  candidate  at  Whitehall  precinct  election,  re- 
fused to  receive  or  receipt  for  the  box,  because  it  was  a  pipe-box  that 
had  been  used  for  the  purposes  of  the  election.  This  county  returning 
officer  is  a  Democrat  in  politics,  and  an  ardent  supporter  of  the  contestee, 
and  after  refusing  to  receive  or  receipt  for  the  box  he  desired  the  pre- 
cinct returning  officer  to  put  the  box  on  a  desk  in  his  office,  which  was 
done.  It  is  in  proof  that  the  ballot-box,  when  deliveied  to  the  pre- 
cinct returning  officer,  had  in  it,  properly  secured,  the  whole  number 
of  ballots  cast,  276  of  which  were  cast  for  contestant  and  14  were  cast 
for  contestee,  and  the  list  of  voters  who  cast  ballots  at  the  election, 
which  is  exhibited  in  the  record.  When  this  ballot-box  was  before  the 
board  of  county  supervisors  its  appearance  showed  that  it  had  been 
opened  from  the  bottom,  and  by  this  means  >tuffed  with  fraudulent 
battots  instead  of  the  true  ballots  cast  by  the  electors.  All  of  contest- 
ant's ballots  found  in  the  box  when  opened,  to  the  number  of  54,  had  a 
hole  in  the  middle  of  each  as  if  having  been  strung  upon  a  string,  and 
were  folded,  and  looked  as  if  they  had  been  cast,  and  the  other  ballots 
found  in  the  box  looked  as  if  they  had  not  been  cast,  and  in  the  shape 
they  were  could  not  have  been  cast  at  the  election  by  being  put  through 
the  hole  in  the  lid  of  the  box ;  the  ballots  were  not  counted  by  the 
board  of  county  supervisors. 

We  can  reach  no  other  conclusion  from  the  facts  and  circumstances 
than  that  the  ballot-box  was  fraudulently  tampered  with  whilst  in  the 
sheriff's  office,  and  before  it  was  brought  before  the  board  of  county 
supervisors.  We  hold  that  the  pipe-box  used  for  the  purposes  of  the 
election  was  not  objectionable,  and  should  have  been  receipted  for,  and, 
as  a  matter  of  law,  we  hold  that  the  contestant  should  have  counted 
for  him  the  276  ballots  cast,  and  that  the  contestee  should  have  counted 
the  14  ballots  cast  for  him.  (See  record.  Testimonv  of  Philip  White, 
pp.  176-178;  Exhibit,  p.  316;  Robert  Payne,  pp.  ]7lCl81;  Major  White, 
pp.  181-185;  Willis  Brady,  pp.  199,  200;  J.  Y.  McDuffie,  pp.  211-216; 
coutestee's  witness,  M.  A.  Graves,  pp.  549,  550.) 

At  the  election  held  at  Pintlala  precinct,  in  the  countj^  of  Lowndes, 
it  appears  from  the  proof  that  after  the  electors  had  cast  their  ballots 
the  closing  hour  had  arrived,  and  the  counting  of  the  ballots  cast  should 
have  commenced.  A  voter  of  the  precinct  appointed  to  act  as  one  of  the 
three  inspectors  previous  to  the  election,  an  active  supporter  of  the  con- 
testee, but  .who  refused  to  act  on  the  morning  of  the  election,  entered 
the  polling  room,  having  with  hiu;i  a  sachel  with  a  partition  in  the 
middle,  in  one  side  of  which  he  had  a  cigar-box  stuffed  with  false  bal- 
lots, and  took  from  the  table  the  ballot-box,  into  which  the  voters  dur- 
ing the  election  had  cast  their  ballots,  and  placed  it  in  the  empty  side  of 
the  sachel.  In  a  few  minutes  a  confederate,  in  a  buggy,  called  him.  He 
took  from  the  sachel  the  fraudulent  stuffed  box  and  placed  it  upon  the 
table,  closed  the  sachel  containing  the  true  ballot-box  and  ballots,  and 
jumped  into  the  buggy  and  left  with  his  confederate.  The  false  ballot- 
box  reached  the  board  of  county  supervisors  certified  to  by  the  election 
officers  as  a  false  and  not  the  true  box.  From  the  proof  made  it  is  shown 
that  at  the  time  of  the  robbery  of  the  true  box  there  were  in  it  320  bal- 
lots cast  for  contestant,  and  40  ballots  cast  for  contestee. 

We  hold  that  all  the  facts  and  circumstances  show  a  bold  device  and 
conspiracy  to  destroy  the  result  of  the  election  at  Pintlala  precinct, 
and,  as  a  matter  of  law,  that  the  true  vote  for  contestant  an<l  contestee 
should  be  counted  for  each.     (Chapman  vs.  Ferguson,  1  Bartlett,  267.) 


SMITH    VS.    SHELLEY.  39 

Coiitesiaut - 320 

Coutestee -• 40 

(See  record.  Testimouy  of  Samuel  M.  Duncan,  pp.  200-203 ;  W.  D. 
Gaskin,  pp,  203-207;  Exhibit,  pp.  344,  345;  Samuel  Lee,  pp.  207,  208 ; 
J.  V.  McDuffie,  pp.  211-216 ;  contestee's  witness,  B.  W.  Mason,  pp. 
554,  555.) 

Contestant,  by  the  proof,  shows  the  true  vote  cast  for  himself  and 
the  coutestee  at  the  election  held  in  Hopewell,  Benton,  Whitehall, 
and  Piutlala  precints,  in  the  county  of  Lowndes,  which  should  be 
counted  for  each,  as  follows : 

For  contestant.  For  conteatee. 

Hopewell  precinct IKi  17 

Benton • 156  0 

Wliitehall 276  14 

Pintlala 320  40 

Total •. mS  71 

RECAPITULATION. 

For  contestant 858 

For  contestee 71 

HALE   COUNTY. 

There  seems  to  be  no  controversy  about  the  election  in  Hale  County, 
except  as  to  Newberu  precinct,  and  as  to  that  election  contestant's 
claim  is  that  it  is  shown  by  the  proof  that  after  the  balloting  was  over 
on  the  day  of  the  election,  the  box  into  which  the  electors  cast  their 
ballots  was  changed  for  a  fraudulent,  false,  and  stuffed  ballot-box.  One 
of  the  inspectors,  a  Democrat  and  supporter  of  contestee,  was  caught 
in  the  very  act.  The  stuffed  box  was  sent  to  the  board  of  county  super- 
visors, who  refused  to  count  the  vote  for  either  candidate  for  Congress, 
and  the  box  was  last  seen  before  the  United. States  grand  jury  at  Mo- 
bile. If  this  claim  is  sustained,  the  fraudulent  conduct  of  the  Demo- 
cratic election  inspectors  appearing,  and  not  having  attempted  to  make 
a  statement  of  the  true  vote  cast,  or  the  intended  fraudulent  count  in 
favor  of  the  contestee,  we  hold  the  true  issue  in  an  election  contest  in 
Congress  or  in  the  courts  to  be — 

1st.  Was  there  an  election  held. 

2d.  Who  received  a  majority  of  the  legal  votes  cast. 

The  proof  shows  that  there  was  an  election  held,  and  that  the  con- 
testant had  cast  for  him  398  ballots,  and  that  the  contestee  had  cast  for 
him  103  ballots.  The  fraudulent  conduct  of  election  officers  cannot 
deprive  the  injured  party  of  the  votes  legally  cast  for  him  by  the  elect- 
ors, for  it  is  the  election  that  entitles  the  party  to  office,  and  that  right 
is  not  impaired  by  the  conduct  of  election  officers  subsequent  to  the 
election.  (13  Alabama  Keps.,  805 ;  Chapman  vs.  Ferguson,  1  Bartlett, 
267.) 

1  am  of  the  opinion  that  the  vote  cast  at  Newbern,  atid  not  counted 
for  either  candidate,  should  be  counted  on  the  proof,  as  follows : 

For  contestant 398 

For  contestee 103 

(For  proof  see  record.  Testimonv  of  Merritt  House,  pp.  300-305; 
Exhibits,  pp.  429-431;  E.  J.  Lavender,  pp.  305-30S ;  Exhibits,  pp. 
318-321 ;  Lawson  Hill,  pp.  3(»8,  309  ;  Exhibits,  pp.  321,  322  ;  Granville 
Thompson,  pp.  312,  313;  Exhibit,  p.  323;  J.  Huggins,  p.  432.     Con- 


40  DIGEST    OF    ELECTION    CASES. 

testee's  witness,  Sam.  Bennett,  pp.  485,  486 ;  Bob  Haywood,  pp.  486^ 
487  ;  M.  S.  Herran,  pp.  488,  489 ;  F.  L.  Huggins,  p.  489 ;  Dennis  Starky^ 
p.  489.) 

PERRY  COUNTY. 

The  Democratic  inspectors,  appointed  by  the  board  of  county  super- 
visors, opened  the  polls  and  held  elections  in  the  precincts  of  Marion 
No.  1,  Cunningham's,  Walthall's,  Scott's,  and  Pope's,  in  Perry  County. 
The  proof  shows  that  the  board  of  county  supervisors  refused  to  obey 
the  election  law  of  the  State,  at  least  in  spirit,  as  to  appointing  one  of 
the  three  inspectors  from  the  opposing  political  party  (Eecord,  p.  254)^ 
and  that  at  Walthall's  and  Cunningham's  precincts  the  United  State* 
supervisors  were  refused  admittance  by  the  inspectors  to  the  polling- 
room,  and  they  were  unable  to  be  present  to  witness  the  casting  and  the 
counting  of  the  ballots,  and  the  manner  of  conducting  the  election  pro- 
vided for  by  the  United  States  election  law,  so  that  each  candidate 
should  have  the  benefit  of  every  vote  for  him  cast. 

The  election  in  Marion  precinct  No.  1,  in  the  county  of  Perry,  was 
held  by  the  inspectors  appointed  previous  to  the  election,  two  of  whom 
were  supporters  of  the  contestee,  and  the  proof,  as  contestant  claims, 
shows  that  at  that  election  precinct  contestant  had  cast  for  him  327 
ballots,  and  the  contestee  had  cast  for  him  about  222  ballots,  yet 
the  election  inspectors  return  contestant  as  having  cast  for  him  only 
89  ballots,  and  the  contestee  as  having  cast  for  him  363  ballots,  show- 
ing a  false  count  against  the  contestant  of  238  ballots,  and  a  false  count 
in  favor  of  the  contestee  of  141  ballots.  Outside  of  the  false  count  and 
false  return  made  by  the  inspectors  at  this  precinct,  the  evidence  tends 
to  show  such  conduct  on  the  part  of  the  inspectors  during  the  election 
that  no  credit  can  be  given  to  their  return  ;  it  proves  nothing,  and  other 
evidence  must  be  resorted  to  to  show  the  true  number  of  ballots  cast 
for  each  candidate.  (McCrary  on  Election  Contests,  p.  234.)  The 
uncontradicted  false  count  of  ballots  cast  for  each  candidate,  and  the 
uncontradicted  evidence  showing  the  conduct  of  the  election  officers  at 
Marion  precinct  No.  1,  bring  us  to  the  conclusion  that  the  ballots  cast 
and  proven  for  each  candidate  inust  be  counted  for  each,  as  shown  by 
the  proof,  and  not  by  the  returns.  Contestant  is  entitled  to  and  should 
receive  credit  for  327  ballots,  less  the  89  ballots  counted  for  him,  and 
from  the  contestee's  vote  should  be  deducted  141  ballots. 

False  count  against  contestant 238= 

False  count  in  favor  of  contestee 141 

(See  record.  Testimonv  of  J.  P.  Billingsley,  pp.  253,  254 ;  James  F.. 
Bailey,  pp.  259-263;  Exhibit,  p.  288;  S.  B.  Price,  pp.  263-269;  Exhib- 
its, p.  286,  pp.  401,  402 ;  Ed.  Spaulding,  pp.  269-274 ;  Matt.  P.  Boyd,, 
pp.  274-278 ;  Exhibit,  p.  288.) 

At  Cunningham's  precinct  in  the  county  of  Perry,  after  the  United 
States  supervisor  was  rejected,  there  was  no  opportunity  offered  to- 
scrutinize  the  manner  of  conducting  the  election  inside  the  i)olling-roomy 
but  it  is  claimed  to  be  shown  by  proof,  uncontradicted,  that  there  were 
cast  for  contestant  315  ballots,  and  for  the  contestee  40  ballots ;  jet  the 
Democratic  inspectors  in  the  return  made  of  the  result  count  the  contes- 
tee as  having  received  210  ballots,  and  the  contestant  as  having  received 
135  ballots ;  shoving  a  false  count  against  contestant  of  180  votes,  and 
a  false  count  in  favor  of  the  contestee  of  170  votes.  The  proof,  uncon- 
tradicted, shows,  as  is  claimed,  a  fraudulent  and  false  count  of  the  bal- 


SMITH    VS.    SHELLEY.  41 

lots  cast ;  the  returns  are  attacked  for  fraud  and  each  candidate  must 
prove  his  vote ;  the  contestant  has  proved  the  actual  vote  cast  for  himself 
and  the  contestee,  and  they  should  be  counted  as  cast ;  the  rule  of  law 
in  such  a  case  being  to  set  aside  the  returns  without  reference  to  what 
appears  on  their  face  (Ferguson  vs.  Chapman,  1  Bartlett,  267 ;  McCrary 
on  Election  Contests,  pp.  309,  310).  We  hold  further  that  the  United 
States  supervisor  at  an  election  poll  is  made  a  part  of  the  State  election 
machinery  and  that  the  State  inspectors  had  no  authority  to  refuse  ad- 
mittance to  the  United  States  supervisor,  and  their  refusal  was  improper 
and  not  warranted  in  law. 

F.alse  count  against  contestant 180 

False  count  iu  favor  of  contestee 170 

(See  record  for  evidence  of  above.  Testimony  of  Henry  Wells,  pp. 
279-281 ;  Nix  Stevens,  pp.  281-285;  Beverly  Smith,  pp.  298-300;  Will- 
iam Jenkins,  p.  387  ;  J.  P.  Billingsley,  pp.  253,  254.) 

The  Democratic  inspectors  at  Walthall's  precinct,  in  the  county  of 
Perry,  refused,  as  at  Cunningham's,  to  permit  the  United  States  super- 
visor to  enter  the  polling-room,  as  provided  by  the  election  law  of  the 
United  States,  and  therefore  he  was  unable  to  scrutinize  the  manner  of 
conducting  the  election,  or  to  witness  the  count  of  the  ballots  cast  for 
each  candidate,  so  that  each  candidate  for  Congress  should  have  the 
benefit  of  every  ballot  for  him  cast.  The  rejection  of  an  United  States 
supervisor,  commissioned  to  be  present,  was  not  authorized  by  law. 
The  proof  shows  that  contestant  had  cast  for  him  at  Walthall's  pre- 
cinct 336  ballots, and  for  the  contestee  34  ballots  were  cast;  the  inspect- 
ors return  as  the  vote  for  contestant  150  ballots,  and  for  the  contestee 
they  return  215  ballots,  showing  a  fraudulent  count  against  contestant 
of  186  ballots,  and  a  fraudulent  count  in  favor  of  contestee  of  181  bal- 
lots. The  statement  of  the  inspectors  as  to  the  ballots  cast  and  counted 
for  each  must  be  set  aside,  and  then  it  is  the  duty  of  Congress,  with- 
out reference  to  the  face  of  returns,  to  ascertain  for  whom  the  ballots- 
were  actuallv  cast  at  Walthall's  precinct  (McCrary  on  Election  Contests^ 
pp.  309,  310"^;  Washburn  vs.  Voorhies,  2  Bartlett,  54). 

We  hold  as  matter  of  law,  from  all  the  facts,  that  the  vote  cast  should 
be  counted  for  each  candidate  as  cast,  notwithstanding  the  false  return, 
made  by  the  precinct  inspectors. 

False  count  against   contestant 186 

False  count  in  favor  of  contestee 181 

(See  record  for  evidence  of  above  testimony  of  William  Q.  Smith,  pp.. 
168,169;  J.  P.  Billingsley,  pp.  2^3,254;  Latch  Evans,  pp.  309-311; 
Exhibit,  pp.  323,  324;  Lee  Andrews,  pp.  311,  312  ;  E.  B.  Jones,  pp.  384,, 
385.) 

At  Hamburg  precinct,  in  the  county  of  Perry,  an  offer  to  bribe  the 
United' States  supervisor  appears  to  have  been  made  by  one  of  the 
election  ofticers,  and  this  failing,  a  fraudulent,  false,  and  stuffed  box 
was  substituted  for  the  ballot-box  into  which  the  electors  had  cast  their 
ballots,  and  a  return  was  made  by  the  inspectors  to  correspond  with 
the  substituted  box. 

The  ])roof  shows  the  number  of  ballots  cast  for  each  candidate  to  be 
338  ballots  for  the  contestant  and  40  ballots  for  the  contestee.  The 
false  count  from  the  substituted  box,  as  made  by  the  precinct  inspect- 
ors' consisted  of  making  it  appear  that  there  were  cast  for  the  con- 
testee 207  ballots,  and  for  the  contestant  88  ballots. 

The  returns  being  set  aside  for  fraud,  the  election  stands,  and  each 
candidate  is  left  to  the  proof  of  the  votes  cast  for  him  (Washburn  vs^ 


42  DIGEST  OF  ELECTION  CASES. 

"Voorhies,  2  Bartlett,  54 ;  Ree<l  vs.  Julian,  2  Bartlett,  882 ;  Xorris  vs. 

Hundley,  Forty-second  Congress;  McCraiy  on  Elections,  page  312). 

To  the  proof  made  by  contestant  no  counter-proof  is  introduced,  and 

■we  hold  the  true  vote  cast  at  Hamburg  should  be  counted  as  proved : 

False  count  against  contestant 250 

Talse  count  in  favor  of  contestee 167 

(See  record  for  evidence  of  above.  Testimony  of  B.  F.  Watson,  pp. 
104-111 ;  398,  399  ;  Green  Johnson.  144-147 ;  J.  F.  Harris,  pp.  254-259  ; 
Exhibit,  p.  288  ;  J.  P.  Billingsley,  i)p.  253, 254.J 

At  Scott's  precinct,  in  the  county  of  Perry,  the  United  States  super- 
visor swears  that  one  of  the  State  inspectors  gave  him  §35  as  a  con- 
sideration for  changing  ballots  cast  for  contestant,  by  striking  out 
■contestant's  name  on  the  ballots  and  writing  thereon  contestee's  name, 
which  was  done.  The  proof  taken  as  to  the  election  at  Scott's  precinct 
jshows  that  contestant  had  cast  for  him  470  ballots,  and  that  the  con- 
testee had  cast  for  him  37  ballots,  liut  when  the  precinct  inspectors 
made  their  return  contestant  is  credited  with  only  196  votes,  whilst  the 
-contestee  had  counted  for  him  227  votes,  showing  a  false  count  against 
■contestant  of  274  votes,  and  a  false  count  in  favor  of  the  contestee  of 
190  votes. 

We  are  of  the  opinion  that  the  votes  should  be  counted  as  cast  for 
•each  candidate. 

False  count  against  contestant 274 

False  count  in  favor  of  contestee 190 

(See  record  of  evidence  of  above.  Testimony  of  Walter  Lowry,  pp. 
155-164,  165,  166,  388-391;  J.  P.  Billingsley,"  pp.  253,  254;  Lazarus 
Avery,  pp.  292-296;  William  Hend.  ison,  pp.  296-298;  Exhibit,  pp. 
322,  323;  contestee's  witnesses,  C.  W.  Turpin,  pp.  481,  4S2 ;  J.  C.  Lee, 
pp.  482,  483;  L.  ]S.  Driver,  pp.483,  484;  E.  Evans,  p.  484;  O.  Schon- 
berg,  485 ;  E.  Ferryman,  p.  485.) 

At  the  election  in  Pope's  precinct,  in  the  county  of  Perry,  contestant 
shows,  by  the  proof  (uncontradicted),  that  there  were  cast  for  him  300 
ballots,  and  for  the  contestee  30  ballots;  that  after  the  election  was 
over  and  the  polls  closed,  and  about  the  time  the  counting  of  the  bal- 
lots cast  should  have  commenced,  one  of  the  three  inspectors  said  he 
"was  sick,  left  the  polling  room  and  returned  no  more  that  day ;  the 
■other  inspectors,  Democrats  in  politics  and  supporters  of  the  contestee, 
refused  to  count  the  ballots  for  either  candidate  in  the  absence  of  the 
«ick  inspector,  and  forwarded  the  box  and  ballots  uncounted  to  the 
board  of  county  supervisors,  who  were  not,  under  the  election  law  of 
Alabama,  authorized  to  count  the  ballots,  and  neither  candidate  had 
the  benefit  of  the  ballots  cast  for  him.  Upon  the  facts,  as  matter  of 
law,  we  hold  that  the  two  inspectors  might  have  properlj^  counted  the 
ballots  and  have  made  a  return  of  the  result  to  the  board  of  county  su- 
p.^rvisors  in  the  absence  of  the  sick  inspec^tor,  but  as  this  was  not  done, 
■and  as  each  candidate  is  by  law  entitled  to  every  ballot  for  him  cast, 
notwithstanding  the  omission  of  the  precinct  inspectors  to  count  the 
ballots,  it  becomes  the  duty  of  the  House  of  Representatives  to  ascer- 
tain from  the  evidence  the  true  state  of  the  vote,  and  the  House  cannot 
be  estopped  from  considering  the  effect  of  the  proof  presented.  (Norris 
vs.  Hundley,  Forty-second  Congress;  McCrary  on  Election  Contests, 
^12  ;  Ex  parte  EUyson,  20  Grat.  Va.,  10.) 

Under  the  proof  contestant  is  entitled  to  have  counted  300  votes,  and 
the  contestee  to  have  counted  30  votes,  being  the  number  of  ballots 
<jast  for  each  candidate  at  Pope's.    .(See  record  for  proof  of  above.   Tes- 


SMITH    VS.    SHELLEY.  43^ 

timony  of  agreement,  p.  285  ;  S.  T.  Smith,  pp.  314-316;  Exhibit,  p.  383; 
Henry  Eobinson,  pp.  316,  317;  Lindsey  McDaniel,  pp.  317,  318;  S.  S. 
Pickering,  p.  384;  J.  P.  Billingsley,  pp.  253,  254.) 

WILCOX    COUNTY. 

The  proof  in  reference  to  the  election  at  Prairie  BliiflF  precinct,  in  the 
county  of  Wilcox,  establishes  the  fact  that  there  were  actually  cast  for 
the  contestant  305  ballots  and  for  the  contestee  23  ballots ;  the  vote 
as  polled  was  returned  to  the  board  of  county  supervisors,  who  declined 
to  count  the  returns,  because  of  an  omissiou  to  insert  the  name  of  the 
precinct.  On  the  cover  of  the  box  was  written  Prairie  Bluif ;  the  in- 
spectors at  this  precinct,  all  white  men,  may  have  omitted  to  insert  in 
the  returns  the  name  of  the  election  precinct,  but  the  proof  supplies  the 
omission  and  establishes  the  fact  that  the  box  was  from  Prairie  Bluflf 
precinct,  and  shows  the  vote  cast  for  each  candidate  as  above  stated. 
An  exhibit  of  the  name  and  number  of  each  elector,  the  statement,  and 
the  ballots  themselves,  are  in  evidence.  Under  the  facts,  we  hold  that 
the  evidence  establishes  the  name  of  the  precinct,  the  number  of  ballots 
cast,  and  for  whom  cast,  and  that  they  should  be  counted  as  cast  for 
each  candidate ;  no  proof  is  offered  to  rebut  the  testimony  j)roduced  on 
the  part  of  contestant,  and,  as  a  matter  of  law,  it  is  the  election  that 
entitles  the  party  to  office,  and  if  a  majority  of  legal  votes  are  <jast,  any 
fraud,  omission,  or  negligence  of  managers  subsequent  to  the  election 
cannot  imj)air  the  party's  right.  (State  ex'rel.  Spence,  13  Ala.,  805;  1 
Bartlett,  267;  McCrary  on  Election  Contests,  sec.  554.) 

Cmitestaut 305 

Contestee 23 

(See  record.  Testimony  of  Thomas  J.  Sykes,  pp.  225-228;  Exhibit, 
pp.  408,  409;  Milton  Brooks,  pp.  2J8-230 ;  B.  M.  Young,  pp.  240-250; 
Exhibit,  pp.  221,  222;  E.  D.  Morrill,  pp. 234-240;  E.  W.Locke,  p.  405.) 

I  have. not  deemed  it  necessary  to  take  into  consideration  the 
votes  cast  and  not  counted  for  contestant  in  the  precincts  of  Bethel, 
Eose  Bud,  and  Canton,  in  the  county  oi  Wilcox,  where  contestant 
claimed  large  majorities,  rejected  by  the  board  of  county  supervisors  on 
account  of  irregularity  and  omissions  in  the  returns,  nor  have  they  con- 
sidered Brooks's  precinct,  in  the  county  of  Lowndes,  nor  Camden,  Snow 
Hill,  and  Pine  Apple  precincts,  in  the  county  of  Wilcox,  where^contest- 
ant  claimed  large  majorities,  but '  where  fraudulent  returns  were 
claimed  to  have  been  made  by  the  precinct  inspectors,  nor  Selma,  Burns- 
ville,  and  Valley  Creek  precincts,  in  the  county  of  Dallas,  where  con- 
testant claims  that  large'  numbersof  Kepublican  electors  who  would 
cast  their  ballots  for  him  were  afforded  no  opportunity  to  do  so,  the 
polls  not  having  been  opened,  because,  if  considered,  it  would  only  add 
to  the  contestant's  majority. 

The  tabulated  statement  herewith  submitted,  marked  Exhibit  A, 
shows  the  true  vote  cast  for  each  candidate,  and  which  should  be  counted 
for  each  of  them  in  this  contest,  audit  shows  the  majority  of  votes 
counted  for  the  contestant,  from  which  it  appears  that  contestant  was 
elected  to  a  seat  in  the  Forty-seventh  Congress  of  the  United  States 
from  the  fourth  Congressional  district  of  Alabama  : 

Exhibit  A. 

The  contestant  is  returned  as  having  received  a  total  vote  of fi,  650 

Add  ballots  cast  for  contestant  and  thrown  ont  I)y  the  board  of  county 
supervisors  for  informality  in  returns,  «tc.  : 

Cahaba  precinct,  Dallas  County 376 

Pipe  ?"lnt  luecinot.  Dal  las  County 280 


44  DIGEST  OF  ELECTION  CASES. 

Mitchell's  precinct.  Dallas  County 360 

River  precinct,  Dallns  County 314 

Lexington  precinct,  Dallas  County 3-<J0 

Martin's  precinct,  Dallas  County 384 

Chillatchie  precinct,  Dallas  County 124 

2, 15& 

Pintlala  precinct,  Lowndes  County ' 320 

White  Hall  precinct,  Lowndes  County 276 

Hopewell  precinct,  Lowndes  County 116 

Benton  precinct,  Lowndes  County 156 

868- 

Prairie  Bluff  precinct,  Wilcox  County 30& 

Pope's  precinct,  Perry  County 300 

Newbem  precinct,  Hale  County 398 

Add  ballots  cast  for  contestant  and  fraudulently  not  counted  for  him  by 
the  precinct  inspectors : 

Walthall's  precinct.  Perry  County 186 

Cunningham's  precinct.  Perry  County 180 

Scott's  precinct.  Perry  County 274 

Hamburg  precinct,  Perry  County 250 

Marion  precinct  No.  1,  Perry  County 238 

1,126 

Contestant's  vote 11,807 

The  contestee  is  returned  as  having  received  a  total  vote  of 9, 301 

Add  ballots  cast  for  contestee  and  thrown  out  by  the  board  of  county 
supervisors  for  informality  in  returns,  «&c. : 

Pope's  precinct.  Perry  County 30 

Prairie  Bloff  precinct,  Wilcox  County 24 

Cahaba  precinct,  Dallas  County 11 

Pine  Flat  precinct,  Dallas  County 25 

Mitchell's  precinct,  Dallas  County 1 

River  precinct,  Dallas  County 1 

Martin's  precinct,  Dallas  County 16 

Pintlala  precinct,  Lowndes  County 40 

White  Hall  precinct,  Lowndes  County '  14 

Hopewell  precinct,  Lowndes  County 17 

Newbern  precinct,  Hale  County 103 

282 

Contestee's  assumed  vote 9, 58Ji 

Deduct  from  the  above  assumed  vote  the  following  votes  fraudulently 
counted  for  contestee  by  the  precinct  inspectors  of  election  : 

Walthall's  precinct.  Perry  County 181 

Cunningham's  precinct.  Perry  County 170 

Scott's  precinct,  Perry  County 190 

Hamburg  precinct,  Perry  County 167 

Marion  precinct  No.  1,  Perry  County 141 

84» 

Contestee's  vote 8,734 

Contestant's  vote 11,807 

Contestee's  vote 8, 734 

Contestant's  n^ajority 3, 073- 

It  was  contended  at  the  hearing  that  inasmuch  as  the  statute  of  Ala- 
bama provides  that  the  ballot-boxes  with  the  ballots  shall  be  kept  by 
the  inspectors  for  sixty  days  for  use  in  case  of  a  contest,  contestant  was 
bound,  as  his  best  evidence,  to  procure  and  put  in  evidence  the  ballots 
themselves  when  proving  what  the  actual  vote  was.  It  is  claimed,  or 
appears,  however,  that  in  many,  if  not  most,  of  the  instances  where 


SMITH    VS.    SHELLEY.  45 

there  was  occasion  to  do  this,  if  important,  the  boxes  had  not  been  kept 
as  required  by  law,  but  had  gone  and  been  allowed  to  go  into  other 
hands.  Whatever  may  be  the  rule  otherwise,  it  certainly  could  not  ap- 
ply in  such  a  case. 

I  find  that  several  of  the  parties  named  in  this  report,  and  charged 
with  frauds  upon  the  election  law  in  the  election  in  question,  were  duly 
presented  to  the  grand  jury  and  indicted  for  the  isame.  Some  of  the 
boxes  in  question  had  been  taken  and  used  before  the  grand  jury  in 
their  investigations.  There  is  no  record  of  any  conviction  or  acquittal 
of  the  parties  indicted.  The  fact  of  indictments  having  been  found  is 
of  course  no  competent  evidence  to  impeach  the  parties  as  witnesses,  and 
the  committee  have  not  so  considered  it. 

Mr.  Stephens  seems  to  have  been  only  nominally  a  candidate,  and  I 
am  impressed  with  the  belief  that  he  got  in  fact  less  votes  .than  were 
^iven  for  him  in  the  official  count,  which  was  1,693. 


County. 


Dallas.... 

Hale 

Xiowudes 

Perry 

Wilcox . . . 


Charles  M.   Jame8  Q.        W.  J. 
Shelley.    {     Smith.        Stephens. 


Total 9,301 


1,  869 

1,833  1 

92 

1,736 ; 

1,043  ; 

442 

1,549 

1,621  1 

477 

2,293  , 

1,389  1 

682 

.1,854| 

1,264  |.... 

6,650  I  1,693 


Said  Smith  has  died  pending  the  contest.  * 

1  recommend  the  adoption  of  the  following  resolutions : 

Besolved,  That  Charles  M.  Shelley  was  not  elected  as  a  Representa- 
tive to  the  Forty-seventh  Congress  from  the  fourth  Congressional  dis- 
trict of  Alabama,  and  is  not  entitled  to  retain  the  seat  which  he  now 
occupies  in  the  House. 

Resolved,  That  James  Q.  Smith  was  duly  elected  as  a  Representative 
from  the  fourth  Congressional  district  of  Alabama  to  the  Forty-seventh 
Congress,  and  hav^ing  deceased,  the  seat  is  declared  vacant. 


Mr.  Beltzhoover,  from  the  Committee  on  Elections,  sub  nitted  the 

following : 

VIEWS    OF    THE    MINORIIY: 

The  fourth  Congressional  district  of  Alabama  is  composed  of  the 
counties  of  Dallas,  Lowndes,  Hale,  Wilcox,  and  Perry. 

It  is  true  that  the  colored  persons  inhabiting  this  district  are  largely 
in  excess  of  the  whites,  there  being  135,181  of  the  negro  race  and  32,855 
of  the  white  race,  but  as  to  how  the  voting  population  is  divided  polit- 
ically there  is  nothing  in  the  evidence  to  show,  unless  assumptions  of 
two  persons  may  be  considered  as  evidence. 

One  of  these  gives  as  his  opinion  that  97^  per  cent,  of  the  colored  peo- 
ple were  Republicans,  and  this  opinion  is  based  upon  his  experience  in 
1876,  when  he  made  a  political  canvass  of  the  district.  (Rapier's  Ex.  R., 
p.  154.)  These  persons  are  both  active  political  partisans  and  members  of 
contestant's  party.  It  is,  therefore,  a  mere  oj)inion  based  upon  an  opin- 
ion, which  has  little  or  no  solid  foundation,  to  assume  that  there  was 


46  DIGEST    OF    ELECTION    CASES. 

18,000  majority  iu  this  district.  If  there  was  such  a  majority  of  negro 
voters,  it  has  been  so  divided  among  opposing  candidates,  so  weak- 
ened by  dissension  and  division,  that  its  power  at  the  polls  has  never 
been  exerted.  As  evidence  of  this  we  find  that  the  board  of  canvassers 
of  each  of  the  counties  of  the  district,  composed  of  the  judge  of  probate, 
the  sherilf,  and  clerk  of  the  circuit  court  of  each  county,  who  are  elected 
by  the  people,  are  iliembers  of  the  Democratic  party.  It  is  also  true 
that"  since  this  Congressional  district  was  formed  there  have  never  been 
less  than  two  candidates  for  election  as  Representative  in  Congress 
claiming  to  be  the  candidates  of  the  Republican  party. 

At  the  Presidential  election  of  1876  theRepublican  majority  for  Hayes 
in  this  district  was  only  9,115  (R.,i).  170),  and  in  the  same  year  the  joint 
majority  for  the  two  Republican  candidates  for  Congress  was  only  6,256. 
There  were  two  candidates  for  Congress  claiming  to  be  Republicans  at 
the  election  of  2:^ovember,  1880.  These  were  the  contestant  and  Wil- 
liam J.  Stevens.  Their  names  were  submitted  to  a  Congressional  con- 
vention, which  was  unable  to  effect  even  a  temporary  organization  be- 
cause of  the  wranglings  and  dissensions  among  its  members.  Contest- 
ant's witness,  Mr.  J.  T.  Harris,  gives  it  as  his  opinion  that  Mr.  Stevens 
was  the  real  candidate  of  the  convention,  though  there  was  so  much 
confusion  and^so  little  of  order  or  propriety  observed,  that  it  was  difficult 
to  say  that  any  one  received  the  nomination  (R.,  p.  258).  There  was  no 
question  of  principle  involved  in  this  wrangling,  and  it  was  evidently  the 
result  of  political  trickery  and  the  selfish  wrangles  of  petty  politicians. 
It  is  notorious  that  the  scenes  at  this  convention  were  but  a  repetition 
of  what  had  uniformly  occurred  at  previous  Congressional  conventions 
in  that  district ;  it  will  therefore  not  be  surprising  if  we  find,  as  we  shall, 
that  the  ignorant,  though  honest,  colored  voter  who  adhered  to  the  Re- 
publican party,  being  unable  to  decide  who  was  entitled  to  his  vote  as 
the  Republican  candidate,  became  disgusted  and  indiflerent  and  refused 
to  take  part  in  the  conduct  of  elections  or  to  attempt  to  vote. 

The  evidence  shows  that  in  the  county  of  Dallas  no  election  was  con- 
ducted at  one-half  of  the  precincts  in  the  county,  and  no  attempt  made 
by  the  Republicans  to  open  the  polls  and  conduct  the  election  in  those 
precincts,  although  there  was  not  the  slightest  impediment  or  obstruc- 
tion placed  in  the  way  of  any  three  Republicans,  iu  any  of  these  ])re- 
cincts,  who  had  sufficient  interest  in  the  election  to  act  as  inspectors 
and  open  the  polls,  and  though  a  Republican  United  States  supervisor 
had  been  ajjpointed  for  each  of  the  voting  places  in  this  county  to  ad- 
vise and  assist. 

DALLAS  COUNTY. 

In  this  county  testimony  is  taken  in  relation  to  seven  precincts,  to 
wit :  Pine  Flat,  River,  Mitchell's,  Chillatchie,  Martin,  Lexington,  and 
Cahaba.  In  relation  to  these  precincts,  it  is  complained,  first,  that  the 
county  board  of  supervisors  appointed  two  Democrats  and  one  igno- 
rant negro  as  the  board  of  inspectors  for  each  voting  place ;  and,  sec- 
ondly, that  the  Democratic  inspectors  who  were  appointed  failed  to  be 
present  and  act  on  election  d&y.  As  to  the  first  complaint,  the  law  re- 
quires that  at  least  two  of  the  insi)ectors  at  each  voting  place  shall  be- 
long to  different  political  parties,  and  it  is  not  denied  that  to  this  extent 
the  board  of  canvassers  complied  with  the  law  iu  appointing  the  inspect- 
ors ;  but  it  is  said  that  the  Republican  inspector  thus  appointed  was  al- 
ways an  ignorant  man.  While  we  fail  to  find  testimony  to  sustain  this 
allegation,  yet  we  would  ask,  How  was  it  possible  for  more  intelligent  rep- 


SMITH    VS.    SHELLEY.  47 

resell tatives  of  the  Kepublican  party  to  be  appointed  ?  It  will  not  he 
denied  that  in  every  precinct  in  Dallas  County  about  wliich  evidence 
lias  been  taken  all  the  officers  of  the  election,  to  wit,  the  three  inspect- 
ors, the  two  clerks,  and  the  United  States  supervisor,  were  Kepublicans,. 
chosen  by  Republicans,  and  yet  we  find  that  for  not  one  voting  precinct 
in  ihe  county  did  they  make  a  return  which  was  not  so  defective  and 
irregular  that  the  board  of  county  canvassers  were  compelled  by  law  to- 
reject  it.  The  ''return"  consists  simply  of  a  certified  copy  of  the  poll- 
list,  and  a  statement  of  the  vote  received  by  each  person,  and  for  what 
office.  Certainly  it  required  no  great  degree  of  intelligence  to  malice 
th  !)  roperly,  and  yet,  presumably  from  ignorance,  not  one  of  the  six 
Republican  officers  at  each  voting  i)lace,  nor  all  of  them  together,  were 
able  to  make  out  a  correct  return.  This  being  so,  how  could  the  board 
of  supervisors  of  the  county  select  an  intelligent  inspector  to  represent 
the  Republicans  in  each  precinct;  and  how  can  anyone  with  justice 
say  that  their  failing  to  do  so  is  evidence  of  a  conspiracy  or  pombina- 
tion  to  defraud  the  voter  ?  As  to  the  failure  of  the  Democratic  inspect- 
ors to  act,  it  should  be  borne  in  mind  that  the  laws  of  Alabama  ex- 
pressly provide  that  no  person  appointed  as  inspector  shall  be  bound  to> 
act  as  such,  or  liable  to  any  penalty  for  failure  to  act,  until  he  shall  have 
either  jierformed  some  act  as  such  inspector  or  taken  the  oath  provided 
for  inspectors ;  and  is  it  a  just  cause  of  copriplaint,  or  forimputation  of  ark 
evil  intent  on  the  part  of  the  Democrats,  because  they  failed  to  take  part 
in  the  election  and  left  the  Republicans  entirely 'free  and  untrammeled 
to  conduct  the  polls  ?  Could  they  ask  more  than  this  f  It  should  be 
remembered  that  the  evidence  shows  there  was  not  the  slightest  at- 
tempt on  the  part  of  the  Democrats  in  this  county  on  election  day  to 
interfere  with  or  impede  the  Republicans  in  their  conduct  of  the  elec- 
tion. 

The  law  of  Alabama  is  that  should  any  of  the  inspectors  appointed 
fail  to  appear  and  open  the  polls  at  the  proper  time,  any  one  or  more  of 
them  who  may  be  present  may  complete  the  number  from  the  by-stand- 
ers,  and  if  all  of  them  fail  to  appear  any  three  qualified  electors  may 
act  as  inspectors  and  open  the  polls.  Now,  if  one  party  consents  that 
the  polls  shall  be  entirely  within  the  control  and  conduct  of  the  other 
party,  can  it  be  gravely  said  that  the  latter  has  cause  to  complain  I 
But  there  is  a  significant  reason  why  Democrats  appointed  as  inspect- 
ors should  have  a  hesitancy  to  act.  On  pages  219  and  220  of  the  rec- 
ord will  be  found  the  names  of  persons  who  have  acted  as  Democratic 
officers  at  elections  at  this  and  previous  elections,  and  who  have  been 
indicted  in  United  States  courts  for  violation  of  the  election  law.  As 
evidence  of  the  facility  with  which  these  indictments  have  been  found, 
and  as  an  example  of  their  character,  we  will  ask  attention  to  the  in- 
dictments against  Charles  W.  Turpin  and  John  C.  Lee,  against  whom 
an  indictment  was  filed  in  the  United  States  circuit  court  at  Montgom- 
ery', charging  them  with  a  violation  of  the  election  laws.  These  men 
were  Democratic  inspectors  at  Scott's  precinct,  in  Perry  County.  The 
occnrreuces  at  the  election  at  that  precinct  are  in  evidence.  But  the 
only  evidence  of  wrong-doing  by  the  inspectors  was  contained  in  the 
testimony  of  one  Walter  Lowry,  a  Republican  supervisor,  who  swears 
that  Mr.  Turiiin  gave  him  (Lowry)  635  to  permit  the  ballots  which  had 
been  cast  to  be  changed  and  altered ;  that  he  accepted  and  retained  the 
bribe  and  permitted  the  unlawful  acts  to  be  committed,  and  indeed 
made  himself  a  party  to  their  commission.  (R.,  p.  159.)  It  is  on  the 
testimony  of  this  witness  that  these  men  were  indicted  and  will  be 
compelled  to  undergo  a  trial.    This  Lowry  is,  upon  his  own  admission, 


4S  DIGEST    OF    ELECTION    CASKS. 

^utterly  unworthy  of  belief.  Is  it  therefore  surprising"  that  Democrats 
are  not  eager  to  conduct  elections  for  the  benefit  of  Kepublicans  when 
they  may  thus  lay  themselves  liable  to  charges  of  this  character  ? 

As  the  returns  from  the  precincts  mentioned  were  rejected,  and  there- 
fore not  included  in  ascertaining  the  vote  of  the  county,  it  was  clearly 
competent  for  thc^  contestant  or  contestee  to  establish  the  vote  by  evi- 
dence if  at  any  of  them  a  lawful  election  was  held.  The  contestant 
attempts  to  establish  his  vote,  and  it  is  for  us  to  ascertain  whether  or 
not  he  has  succeeded. 

.  As  the  sitting  member  held  the  seat  by  a  title  prima  facie  sufficient, 
it  is  incumbent  on  the  contestant  to  affirmatively  prove  this  title  defect- 
ive. This  rule  is  well  stated  in  the  celebrated  Xew  Jersey  case  (1  Bart- 
lett,  pp.  24  and  26) : 

Before  a  member  is  admitted  to  a  seat  in  the  House  something  like  the  judgment 
of  a  court  of  competent  jurisdiction  has  been  pronounced  on  the  right  of  each  voter 
whose  vote  has  been  received,  and  in  order  to  overturn  the  judgment  it  must  have 
been  ascertained  affirmatively  that  the  judgment  was  erroneous.  *  •*"  *  When  the 
polls  are  closed  and  an  election  is  made,  the  right  of  the  party  elected  is  complete  ; 
he  is  entitled  to  the  returns,  and  when  he  is  admitted  there  is  no  kuown  principle  by 
which  he  can  be  ejected,  except  upon  the  affirmative  proof  of  the  defect  in  his  title. 
Every  effort  to  oust  him  must  accomplish  it  by  proving  a  case.  The  difficulties  in 
his  path  can  form  no  possible  reason  why  the  committee  should  meet  him  half  way. 
The  rule  of  reason  requires  that  he  should  fully  make  out  his  case  even  though  it  re- 
quire proof  of  a  pegative,  and  such  is  also  a  rule  of  Parliament  in  analogous  cases. 

The  burden  of  proof  being  upon  the  contestant,  by  what  character  of 
evidence  should  he  be  required  to  prove  his  case  ?  The  ordinary  rules 
of  evidence  must  of  course  apply  to  election  contests  as  well  as  to  other 
cases.  (McCrary  on  Elections,  sec.  306.)  One  undeviatiug  rule  of  evi- 
dence is  that  the  best  evidence  must  be  produced  of  which  the  nature 
of  the  case  will  admit ;  that  secondary  cannot  be  substituted  for  primary 
evidence  unless  it  be  shown  that  the  latter  is  not  within  the  power  of 
the  party,  and  the  former  should  certainly  not  be  substituted  for  the 
latter  when  it  is  ai)parent  that  the  primary  evidence  is  within  the  reach 
of  the  party  and  is  by  the  law  placed  within  his  power. 

Now,  there  are  certain  documentary  evidences  of  the  election  which 
the  law  of  Alabama  provides  should  be  preserved  for  the  sole  purpose 
of  furnishing  evidence  of  the  vote  in  case  of  contest ;  these  are  the 
ballots  which  were  cast  at  the  election.  The  ballots  cast  at  each  v^otiug 
place,  together  with  one  poll-list^  are  required  to  be  carefidly  sealed  up  in 
the  ballot-box  and  delivered  into  the  custody  of  one  of  the  inspectors, 
who  is  required  to  retain  it  for  sixty  days  intact,  and  then  to  destroy 
the  contents  of  the  box,  unless  he  is  notified  that  the  election  of  some 
officer  for  which  the  election  was  held  will  be  contested,  in  which  case 
he  must  preserve  the  box  for  such  election  until  such  contest  is  finally 
determined,  or  until  such  box  is  demanded  by  some  other  legal  custo- 
dian during  such  .contest.     (Section  288,  Code  of  Alabama.) 

It  will  be  seen  that  the  ballots  are  required  to  be  preserved  expressly 
for  the  contestant.  These  are  the  evidences  of  the  result  of  the  elec- 
tion which  the  law  provides.  In  addition  to  this  the  certified  poll-lists, 
statements,  &c.,  which  are  returned  by  the  board  of  inspectors  of  each 
precinct  and  the  county  board  of  canvassers,  are  required  to  be  retained 
intact  in  the  office  of  the  judge  of  probate.  (Section  293,  Code  of  Ala- 
bama.) 

Now,  if  the  returns  are  made  by  the  board  of  inspectors  and  are  at- 
tacked, or  if  insufficient  or  defective  returns  or  no  returns  are  made, 
will  it  be  denied  that  these  ballots  are  the  best  evidence  of  the  result* 
of  the  election,  especially  where  it  must  be  admitted  from  the  nature  of 


SMITH    VS. -SHELLEY.  49 

the  case  that  the  ballots  iu  the  box  retained  by  law  for  the  purpose  of 
evidence  are  the  genuine  ballots  which  were  cast  at  the  election?  And 
if  it  be  true,  a^  it  is,  that  the  ballots  from  the  election  at  each  of  these 
precincts  in  Dallas  County  were  placed  in  the  custody  of  the  Republican 
inspector  by  the  Republicans,  that  they  were  received  from  the  hands 
of  the  voter  by  Republicans  only,  counted  by  Republicans  only,  placed 
in  the  box  and  sealed  up  by  the  Republicans  only,  will  it  be  gravely 
contended  that  the  contestant  should  be  permitted  to  oflfer  secondary 
and  inferior  evidence  to  prove  what  the  vote  was  at  the  several  voting 
places  without  having  attempted  to  put  these  ballots  in  evidence,  or 
furnish  any  reason  or  excuse  whatever  -for  his  failure  to  do  so?  In  no 
instance  is  any  inquiry  made  for  the  ballots,  nor  is  any  effort  made  to 
produce  them,  not  even  where  the  testimony  itself  shows  to  whom  the 
ballots  were  committed,  and  even  in  those  cases  where  the  person  who 
had  the  ballots  in  his  custody,  as  shown  by  the  testimony,  appeared 
and  was  examined  as  a  witness  by  the  contestant.  Without  showing 
that  the  ballots  were*  not  in  his  power  to  produce,  contestant  resorts  to 
oral  evidence.  This  he  clearly  could  not  do.  Oral  evidence  cannot  be 
substituted  for  any  instrument  which  the  law  requires  to  be  in  writing, 
and  no  proof  can  be  substituted  therefor  so  long  as  the  writing  exists 
and  is  in  the  power  of  the  party.     (Greenleaf  on  Ev.,  sec.  86,  vol.  1.) 

In  the  contested-election  case  of  Spencer  vs.  Morey  (Smith's  Digest, 
p.  449)  it  was  admitted  by  both  parties  that  no  oflQcial  returns  could  be 
found,  because  they  had  been  abstracted  or  destroyed.  This  being  the 
case,  the  minority  of  the  committee  say : 

The  best  evidence,  viz,  the  returns,  having  been  lost  or  destroyed,  secondary  evi- 
dence is  then  admissible  to  establish  what  was  the  contents  of  the  written  instrument, 
viz,  the  returns.  We  understand  the  rule  governing  the  admissibility  of  secondary 
evidence  with  respect  to  documents  to  be  that  proof  of  their  contents  may  be  estab- 
lished by  secondary  evidence,  first,  when  tlie  original  writing  is  lost  or  destroyed; 
second,  when  it«  production  is  a  physical  impossibilitv,  or  at  least  highly  inconven- 
ient (p.  480). 

In  this  case  it  is  not  shown  that  any  of  these  condi,tions  existed  to 
justify  the  introduction  of  oral  testimony.  We  can  only  conjecture  why 
contestant  failed  to  have  the  ballots  produced,  but  we  cannot  avoid  the 
suspicion  which  the  law  itself  creates  that  the  failure  to  produce  the 
ballots  was  because  they  would  not  conform  to  the  imperfect  returns  or 
the  unreliable  testimony  of  the  witnesses  for  the  contestant.  If  this 
plain  principle  of  law  be  not  disregarded,  it  is  unnecessary  to  further 
consider  the  testimony  in  relation  to  these  precincts ;  but  we  think  that 
an  examination  into  the  testimony  produced  will  show  that  contestant 
has  failed  to  establish  the  vote  by  satisfactory  evidence. 

In  Martin's  precinct  the  testimony  shows  (R.,  p.  120)  that  a  large 
number  of  the  colored  voters  were  Democrats,  and  there  were  three 
recognized  candidates  for  Congress  at  the  election,  viz,  contestant, 
contestee,  and  W.  J.  Stevens. 

Two  witnesses  are  examined  by  contestant  to  establish  the  vote  of 
this  precinct.  These  are  A.  Martin  (R.,  pp.  121  to  124),  Ned  Pettiway 
(R.,  pp.  114  to  121).  Martin  was  an  inspector  of  the  election,  and  he  is 
the  only  ofl&cer  of  the  election  who  is  examined.  He  states  that  he  helped 
to  count  the  ballots,  though  he  could  not  read,  and  could  not  tell  a 
Republican  from  a  Democratic  ballot  (R.,  p.  123).    He  says,  on  p.  122 : 

Myself  and  Nathan  and  another  counted  them  ;  we  put  them  on  the  floor,  counted 
them  in  two  hats,  one  by  one,  and  made  a  tally  of  them. 

jSTed  Pettiway  swears  that  he  gave  the  inspectors  the  directions  "how 
H.  Mis.  35 4 


50  DIGEST   OF   ELECTION   CASES. 

to  count  and  how  to  tally ;"  that  they  did  not  know,  and  he  had  to 
stand  outdoors  and  give  them  directions.  He  swears  the  tickets  were 
counted  by  three  separate  men  at  the  same  time,  each  of  them  having 
a  pile  of  the  tickets  and  counting  them  in  his  hat.  And  he  swears  posi- 
tively that  these  tickets  were  never  read  over  but  once,  and  then  were 
read  simply  as  "  Eepublican  "  or  "  Democrats." 

A.  Martin  says  that  the  clerks  read  the  names  on  the  tickets,  and  it 
is  not  pretended  that  any  of  the  inspectors  read  them.  He  only  knows 
that  there  were  sixteen  Democratic  votes  cast,  because,  as  he  states 
(E.,  p.  124),  "  I  made  them  [the  clerks]  hand  them  out  to  me." 

To  show  how  unreliable  is  the  testimony  of  the  witness  Martin,  and 
of  these  witnesses  generally,  we  ask  attention  to  his  statement  (R.,  p. 
124)  where  he  swears  positively  that  the  statement  of  the  result  of  the 
election  was  signed  by  the  inspectors;  and  yet  when  that  statement  is 
put  in  evidence  it  is  found  to  be  unsigned.  Now,  if  these  ballots  were 
simply  counted  as  Democratic  or  Republican,  and  if  all  the  candidates  on 
the  Republican  ticket  were  the  Republican  candidates,  and  all  the  can- 
didates on  the  Democratic  ticket  were  only  Democratic  candidates,  how 
is  it  possible  to  determine  from  this  testimony  whether  or  not  Mr.  Ste- 
vens received  any  votes  ?  The  law  of  Alabama  in  regard  to  the  count- 
ing of  ballots  is  as  follows : 

Section  1.  In  counting  ont,  the  returning  oflScer  OEone  of  the  inspectors  must  take 
the  ballots  one  by  one  from  the  box  in  which  they  have  been  deposited,  at  the  same  t'me 
reading  aloud  names  of  persons  written  or  printed  thereon,  and  the  office  for  which 
such  persons  are  voted  for.  They  must  separately  keep  a  calculation  of  the  number  of 
votes  each  person  receives  and  for  what  office  he  receives  them  ;  and  if  two  or  more 
ballots  are  found  rolled  up  or  folded  together,  so  as  to  induce  the  belief  that  the  same 
was  done  with  a  fraudulent  intent,  they  must  be  rejected ;  or  if  any  ballot  contains 
the  nameu  of  more  than  the  voters  had  a  right  to  vote  for,  the  first  of  such  namea 
on  such  ticket  to  the  number  of  persons  the  voter  was  entitled  to  vote  for  only  musk 
he  counted. 

When  asked  what  oath  was  taken  by  the  inspectors,  the  witness 
Martin,  tells  us: 

I  swore  the  inspectors;  I  told  them  to  raise  their  hand  and  say,  j'ou  solemnly 
swear  to  go  forth  aud  do  the  best  they  could  in  this  election  to  discharge  those- 
duties. 

The  law  makes  the  following  provision  as  to  the  oath : 

Before  opening  the  polls  the  inspectors  and  clerks  may  take  the  oath  to  perform 
their  duties  at  such  election  in  accordance  to  law,  to  the  best  of  their  judgment,  and 
the  inspectors  must  also  swear  that  they  will  not  themselves  or  kuowijigly  allow  any 
other  person  to  compare  the  number  of  the  ballots  with  the  number  of  the  voters  en- 
rolled, which  oath  may  be  administered  to  the|in8pectors  by  each  other,  or  by  a  return- 
ing officer,  or  by  a  justice  of  the  peace.     (Code  of  A.labama,  sec.  265.) 

Now  we  do  not  contend  that  the  votes  cast  at  this  election  should  not 
be  counted  because  the  ballots  were  not  counted  in  the  careful  manner 
provided  by  law,  nor  because  the  oath  provided  by  law  was  not  taken 
by  the  inspectors,  but  what  we  believe  is  that  as  the  inspectors  were  too 
ignorant  to  know  what  oath  should  be  taken,  or  either  too  ignorant  or 
too  careless  of  their  duties  to  ascertain  the  result  of  the  election  as  pro- 
vided by  law,  and  as  it  is  shown  that  their  counting  of  the  votes  was  of 
such  a  character  as  to  make  it  unreliable,  the  House  cannot  say  from 
the  evidence  what  the  vote  was. 

In  the  examination  of  Pettiway  he  states,  on  ])age  116,  the  ballots 
were  kept  by  one  of  the  inspectors,  as  were  one  of  the  poll-lists,  and  he 
repeats  this  statement  (R.,  p.  120).  Why  did  not  the  contestant  have 
a  subpoena  duces  tecum  served  upon  the  inspector  who  had  these  ballots 
in  his  custody  ?  Does  not  this  testimony  show  clearly  the  necessity  of 
adhering  to  the  rule  of  evidence  before  laid  down  ? 


SMITH    VS.    SHELLEY.  51 

lu  Lexiii<:t()n  precinct  contestant  claims  320  votes,  and  gives  none  t<K 
eitber  Mr.  Stevens  or  Mr.  Shelley.  Xow,  the  imperfect  retnrn  from  this- 
voting-  place  which  was  sent  to  the  board  of  canvassers,  tbougli  un- 
signed, shows  by  its  contents  (a  tally  of  the  vote)  11  votes  for  Mr. 
Shelley  and  140  for  contestant.  Evidently  the  inspectors  had  com- 
menced to  keep  a  tally  of  the  vote  cast,  and  had  given  11  votes  to 
Mr.  Shelley  and  only  140  to  Mr.  Smith,  yet  on  the  witness  stand  they 
say  that  contestant  received  320  votes  and  contestee  none.  Only  two 
witnesses  are  examined,  and  these  are  July  Adams  and  Harris  Mosely. 
Adams  was  present  and  assisted  in  the  counting  of  the  vote.  He  says 
that  the  ballots  were  never  read  when  they  were  counted  (R.,  pp.  127, 
128).  They  were  all  considered  as  Eepublican  ballots  and  as  votes, 
for  contestant,  and  so  counted  without  ever  being  read.  His  testimony 
as  to  this  is  as  explicit  and  positive  as  testimony  can  be  made.  There^ 
is  no  evidence  to  contradict  or  discredit  Adams'  testimony. 

Witness  Mosely  was  a  deputy  marshal  who  did  not  see  the  votes 
counted  and  does  not  pretend  to  know  wbat  the  vote  was.  (R.,  pj). 
129-131.) 

These  ballots  have  never  been  counted  so  as  to  ascertain  the  actual 
result  of  the  election ;  but  if  the  contestant  had  put  them  and  the  poll- 
list  in  evidence  they  could  have  been  counted  and  the  result  of  the  elec- 
tion correctly  ascertained.  Until  those  ballots  are  read  and  counted,  or 
until  the  voters  themselves  are  examined  and  testify,  no  man  can  say 
what  was  the  result  of  the  election  at  that  precinct. 

In  Chillatchi  precinct  the  inspectors  numbered  the  ballots,  in  viola- 
tion of  the  law,  and  in  direct  violation  of  their  oaths  compared  the 
numbered  ballots  with  the  name  opposite  the  corresponding  number  on 
the  poll-list.  (R.,  p.  143.)  No  account  of  the  vote  cast  was  kept  by  the 
inspectors  as  the  ballots  were  being  counted.  In  the  language  of  the 
witness  "  no  one  did  any  writing  while  the  votes  were  being  counted." 
(R.,  p.  143.) 

The  provisions  of  law  in  relation  to  the  counting  of  the  ballots  were 
entirely  disregarded.  The  tickets  were  not  read  when  they  were  counted, 
or  at  any  time,  as  far  as  it  appears  by  the  evidence.  They  were  counted 
by  William  Perry,  a-  clerk,  and  not  an  inspector  of  the  election ;  and 
Lindsey  Irby  swears  that  Perry  opened  the  ballots  to  keep  from  count- 
ing two,  but  "  that  he  never  did  read  them  all  over  any  time."  (R., 
p.  136.) 

Tony  Abels  (R.,  p.  142)  contradicts  the  testimony  of  Irby  to  some  ex- 
tent by  stating,  first,  that  only  the  name  Smith  and  Garfield  were  called 
out,  and  then  that  only  the  names  of  the  electors  were  called.  But  Lind- 
sey Irby  states  that  the  ballots  cast  at  the  election  were  delivered  into 
the  custody  of  Harris  Mosely,  one  of  the  inspectors.  Why  were  not 
these  ballots  produced  in  evidence  ? 

In  River  precinct  Dave  Barnes,  one  of  the  inspectors  (R.,  p.  93),  was 
made  the  custodian  of  the  ballots,  and  though  he  was  examined  as  a 
witness  for  contestant  he  was  not  even  asked  to  produce  the  ballots. 
Contestant's  witnesses  give  him  314  votes  at  this  precinct  and  contestee 
only  one ;  they  all  swear  to  this  precise  number,  yet  the  tally-sheet 
returned  by  them  to  the  board  of  canvassers,  which  is  in  evidence,  shows 
only  305  votes  for  contestant. 

In  Pine  Flat  precinct  the  ballots  were  delivered  to  the  custody  of  Sam. 
Boner  (R.,  p.  81),  one  of  the  inspectors.  They  were  not  counted  by  the 
inspectors,  but  by  the  two  clerks  and  one  inspector  (R.,  p.  82).  This  is 
the  testimouy  of  Square  Grurabers,  who  swears  that  he  took  the  ballots 
out  of  the  box  as  they  were  being  counted,  while  Shadric  Tarber,  United 


b'2  DIGEST  OF  ELECTION  CASES. 

States  supervisor,  is  equally  positive  that  Gabe  Hay  den  performed  this 
•duty. 

In  Mitchell's  precinct  we  have  only  secondary  evidence  as  to  what  the 
vote  was,  but  when  asked  why  the  inspectors  did  not  sign  tbe  returu  we 
jhave  as  an  excuse  that  they  "  forgot  it."  Their  return,  however,  though 
■unsigned,  gives  contestant  only  355  votes,  while  all  three  of  the  wit- 
nesses. Hatcher,  Thomas,  and  Moore,  state  that  he  received  360. 

No  attempt  is  made  to  put  iu  evidence  the  ballots  which  were  cast  at 
i;he  election.  Contestant  does  not  even  examine  Henry  Yasser,  who 
took  down  the  names  of  the  voters  as  they  voted,  and  delivered  their 
tickets  to  them.  His  testimony  would  have  been  valuable,  because  he 
was  not  one  of  the  officers  of  election  who  forgot  one  of  the  important 
•duties  of  such  ofiflce  and  made  a  return  of  355  tallies  thereon,  when  the 
-correct  number,  as  they  swear,  was  360.  We  merely  comment  upon  the 
character  of  the  testimony  in  relation  to  these  precincts  in  order  to  show 
that  in  the  absence  of  the  ballots  it  is  unsatisfactory'  and  unreliable  in 
the  highest  degree. 

LOWNDES  COUNTY,  WHITEHALL  PRECINCT. 

Contestant  proves  by  his  own  witness,  J.  Y.  McDuffie,  who  as  judge 
of  the  probate  court  was  a  member  of  the  board  of  canvassers  for  this 
county,  that  when  the  box  was  opened  in  the  presence  of  the  board  it 
was  found  to  contain  45  ballots  for  James  Q.  Smith  for  member  of  Con- 
gress, and  between  200  and  300  ballots  for  William  J.  Stevens  for  liep- 
resentative  in  Congress.  As  there  was  no  statement  of  the  result  of  tlie 
election  by  the  inspectors  found  iu  the  box,  the  board  of  canvassers 
were  unable  to  count  the  vote.    Now,  McDuffle  says : 

It's  my  opiuion  fri)m  examinatiou  aud  inquiries  I  have  made  that  there  was  a  fraud 
^t  Whitehall  beat,  audthat  it  wasdoue  by  the  box  being  opened  from  the  bottom  and 
everything  in  it  except  45  tickets  with  Smith's  name  upon  them  taken  out,  and  these 
Stevens  tickets  put  in. 

McDuf&e  was  the  warmest  friend  of  Mr.  Smith,  and  was  the  officer 
before  whom  all  of  his  testimony  was  taken.  He  does  notinfoim  us  what 
was  the  extent  of  his  examination  or  the  nature  of  the  inquiries  he 
made.  Now,  contestant  hav^ing  proved  what  were  the  character  of  the 
ballots  found  in  the  ballot-box  by  his  own  witness,  it  is  then  attempted 
to  set  aside  the  force  of  this  testimony  by  accepting  the  mere  opinion 
of  this  witness  that  the  box  was  tampered  with.  But  there  is  positive 
evidence  that  the  box,  when  opened  by  the  board  of  canvassers,  was, 
with  its  contents,  in  the  same  condition  as  when  delivered  by  the  in- 
spectors to  the  returning  officer  of  the  precinct,  and  by  him  delivered 
to  the  returning  officer  (the  sheriff)  of  the  county. 

The  returning  officer  of  the  precinct  was  Phillip  White,  the  Repub- 
lican United  States  supervisor,  and  he  swears  that  he  delivered  the  box 
intact  to  the  sheriff  of  the  county  (R.,  p.  176),  and  Mr.  Graves,  the 
sheriff,  swears  that  the  box,  with  its  contents,  was  delivered  by  him  to 
the  board  of  canvassers  in  the  same  condition  iu  which  it  was  received. 

It  is  not  pretended  that  the  ballots  were  tampered  with  before  they 
were  delivered  to  the  returning  officer  of  the  precinct ;  nor  could  it  be, 
because,  White,  Republican  supervisor,  and  Willis  Brady  (R.,  p.  199), 
the  Republican  inspector,  testified  to  the  contrary  ;  nor  can  it  be  pre- 
tended that  the  official  statement  of  the  result  of  the  election  was  put 
in  the  box  and  fraudulently  extracted,  because  White,  the  Republican 
supervisor  and  returning  officer,  testifies  that  nothing  was  in  the  box 
"  but  the  clerk's  list  and  the  tallies."    The  box  and  the  ballots  are  not 


SMITH    VS     SHELLEY.  53 

pnt  in  evidence,  so  that  the  House  is  unable  to  say,  from  examination, 
whether  the  bottom  of  the  box  had  been  removed,  or  whether  anything 
in  the  appearance  of  the  ballots  indicated  that  they  were  not  those  act- 
ually cast.  The  statements  of  the  witnesses,  supporters  of  contestant, 
that  the  vote  was  different  from  what  the  ballots  themselves  show,  is 
setting  up  the  mere  oral  declarations  of  these  witnesses  as  to  what  the 
count  was,  or  the  count  itself  against  the  ballots,  it  not  having  been 
shown  that  they  were  not  the  actual  ballots  cast  at  the  election.  The 
oflicers  of  the  election,  White  and  Brady,  who  testify  that  the  vote  as 
counted  does  not  conform  to  the  ballots  as  found  in  the  box,  were  also 
the  officers  who  negligently  or  corruptly  neglected  or  failed  to  make  the 
board  of  canvassers  a  lawful  return  of  the  vote.  Under  these  circum- 
stances it  appears  to  us  that  the  only  satisfactory  evidence  as  to  what 
the  vote  was  at  this  precinct  must  be  the  testimony  of  the  voters  them- 
selves, g-nd  they  have  not  been  examined. 

PINTLALA  PRECINCT. 

The  officers  of  election  at  this  precinct  consisted  of  three  Republican 
inspectors,  two  Republican  clerks,  one  Republican  United  States  super- 
visor, William  G.  Uaskin,  and  Samuel  M.  Duncan,  United  States  super- 
visor on  the  part  of  the  Democrats.  Xow,  upon  the  testimony  of  Gas- 
kin  alone,  it  is  alleged  that  oneE.  P.  Holcombe  came  into  the  room  where 
the  election  was  being  held  before  the  polls  had  closed  and  substituted 
the  fraudulent  for  the  genuine  box,  carrying  the  genuine  box  off'  with 
him.  If  this  were  true,  some  of  the  other  five  Republican  officers  of  the 
election  would  certainly  have  had  knowledge  of  it,  and  could  have  been 
examined  by  contestant  to  support  the  evidence  of  Gaskin,  and  the  ne- 
cessity for  corroborating  his  testimony  must  have  appeared,  when  in  re- 
l)]y  to  a  question  as  to  whether  or  not  he  had  been  expelled  from  the 
legislature  of  Alabama  for  bribery  (R.,  p.  207),  he  says : 

I  decline  to  answer  any  fnrther  questions  on  that  subject,  because  I  do  not  think  it 
is  right. 

Holcombe  had  died  before  the  testimony  was  taken,  and  the  only  po- 
litical friend  of  contestee  present,  Mr.  Mason,  is  examined  by  contestee 
to  rebut  the  testimony  of  Gaskin.  Mr.  Mason  says  (R.,  p.  555)  that 
complaint  having  been  made  that  the  boxes  were  changed,  he  "  scru- 
tinized the  said  box  carefully,  but  could  perceive  no  difference  in  it." 
He  also  informs  us  that  the  inspectors  one  at  a  time  went  to  dinner, 
leaving  the  box  in  charge  of  the  other  two,  and  Mr.  Gaskin  admits  that 
he  was  not  present  when  the  boxes  were  changed.  The  inspectors  counted 
the  ballots  in  the  box  and  did  not  reach  the  opinion  that  the  box  had 
been  changed  until  they  found  that,  although  there  were  355  names  on 
the  poll-list,  there  were  only  354  ballots  in  the  box.  In  their  return  (R., 
p.  550)  they  state  this  as  their  reason  for  not  believing  the  box  contain- 
ing the  ballots  to  be  the  correct  box,  but  they  do  not  say  in  their  return 
that  they  saw  the  box  changed  or  that  they  noticed  such  a  difference  in 
the  box  as  to  satisfy  them  that  it  was  changed.  There  is  a  mystery 
about  the  entire  matter. 

As  the  polls  were  not  closed  when  the  alleged  change  was  made,  how 
could  a  box  have  been  prepared  containing  within  one  of  the  correct 
vote,  and  how  could  one  man  walk  into  a  polling  place  and  quietly 
carry  off"  the  ballot-box  without  opposition  or  objection  on  the  part  of 
the  officers  present,  when  six  of  those  officers  were  opposed  to  the 
change?  The  ballots  in  the  alleged  false  box  were  never  counted.  But 
admitting  that  the  box  was  fraudulently  changed  as  alleged,  the  ques 


54  DIGEST    OF    ELECTION    CASES. 

tion  arises,  what  was  the  actual  vote,  and  contestant  fails  to  show  this. 
To  prove  the  vote  he  examines  two  witnesses,  the  Gaskiu  before  men- 
tioned and  Samuel  M.  Duncan.  Mr.  Duncan,  who  was  not  an  officer  of 
the  election,  gives  his  opinion  as  to  the  vote,  and  bases  it,  to  use  his 
own  language  (K.,  p.  202),  "on  the  number  of  persons  voting  the  Repub- 
lican ticket  who  were  there  to  vote  and  the  number  who  were  there  to 
vote  the  Democratic  ticket." 

But  to  show  how  uncertain  his  knowledge  is,  afrer  stating  the  num- 
ber of  Republican  votes  to  be  about  225,  he  immediately  changes  his 
opinion  and  thinks  that  it  might  have  been  325.  Graskins  says  that  he 
kept  an  account  of  the  vote  part  of  the  day  (before  half  past  three),  but 
that  the  only  means  that  he  had  of  Jcnowing  how  many  votes  were  cast 
was  by  seeing  the  ballots  as  they  were  handed  in.  But  the  law  requires 
that  the  ballots  shall  be  folded  when  cast,  and  that  they  shall  nor  be 
received  when  not  folded,  and  Mr.  Mason  swears  that  the  ballots  were 
folded  when  voted  (R.,  p.  555),  thus  sustaining  the  presumi)tion  of  law 
to  that  effect. 

We  are  left  in  doubt  as  to  whether  any  vote  from  this  precinct  was 
included  by  the  board  of  canvassers  when  estimating  the  vote  of  the 
county,  as  there  is  no  testimony  on  that  subject. 

HOPEWELL   PRECINCT. 

The  election  at  this  precinct  was  conducted  by  oqlj'  two  inspectors' 
and  as  the  law  requires  that  three  inspectors  should  hold  the  election,  it 
was  void  (Howard  vs.  Cooper,  1  Bartlett,  334).  There  were  two  Demo- 
cratic inspectors  appointed  to  act,  but  the  testimony  shows  (R.,  p.  551) 
that  one  of  them  could  not  serve  because  of  sickness  in  his  family,  and 
that  the  other  was  prevented  from  serving  by  his  duties  as  a  practicing 
physician. 

Nothing  was  returned  from  this  precinct  but  a  poll-list  and  a  lot  of 
loose  tickets,  the  most  of  which  appeared  to  be  for  Mr.  Stevens,  although 
they  were  not  counted.  Mr.  Jones,  the  returning  officer  of  the  precinct, 
states  that  he  delivered  the  box  to  the  returning  officer  of  the  county 
in  the  same  condition  in  which  he  received  it  (R.,  p.  546),  and  that  the 
box  when  delivered  to  him  was  fastened  with  tacks,  but  not  sealed.  He 
also  swears  that  most  of  the  colored  people  of  that  precinct  were  for  Mr. 
Stevens  (R.,  p.  546),  and  in  this  he  is  corroborated  by  Mr.  Sullivan  (R., 
p.  551).  The  two  inspectors  say  that  Mr.  Smith  received  298  votes  and 
Mr.  Shelley  24,  Stevens  none ;  while  Mr.  McDuffie  admits  (R.,  p.  16)  that 
tlje  actual  Republican  vote  of  that  precinct  was  200,  and  the  Demo- 
cratic 100. 

Now,  if  this  election  were  not  void,  we  have  only  the  testimony  of  two 
inspectors,  members  of  the  same  party,  who  performed  their  duties  with 
the  highest  degree  of  carelessness,  to  use  no  harsher  word,  as  to  what 
the  vote  was ;  their  statements  being  in  opposition  to  the  evidence  of 
the  ballot  themselves  and  to  the  wishes  of  the  voters.  It  is  clear  that 
in  a  case  of  this  kind,  where  the  ballots  are  attacked  and  where  there  is 
no  return,  the  only  satisfactory  evidence  of  the  vote  must  be  that  of  the 
voters. 

BENTON  PEECINCT. 

The  evidence  is  that  there  were  two  elections  held  in  this  precinct, 
from  one  of  which  a  return  was  made,  and  presumably  the  vote  was 
counted  by  the  board  of  canvassers  in  estimating  the  result  of  the  elec- 
tion in  the  county,  but  we  are  not  informed  what  this  vote  was. 


SMITH    VS.    SHELLEY.  56 

Now,  contestant  claims  that  this  election  was  void,  and  that  the  elec- 
tion at  the  other  polling  place  was  a  lawful  one.  We  believe  from  the 
evidence  that  the  latter  election  was  technically  the  correct  one  and 
that  the  former  was  not.  But  how  is  it  possible,  to  correct  the  vote  of 
the  county  by  adding  thereto  the  vote  cast  at  the  true  election  (which 
lias  not  been  included  in  the  vote  of  the  county)  and  taking  therefrom 
the  vote  cast  at  the  void  election,  there  being  no  evidence  as  to  what 
the  latter  *vas.  As  there  was  doubt  as  to  which  was  the  true  voting- 
place,  it  might  be  true  that  any  number  of  the  voters  voted  at  both,  as 
they  would  have  a  lawful  right  to  do,  because  only  one  of  the  elections 
could  be  legal.  It  must  be  clear  to  any  one  that  it  is  impossible  to  cor- 
rect the  vote  of  the  county  until  it  is  shown  by  evidence  what  was  the 
vote  at  the  void  election  in  this  precinct. 

NEWBERN  PKECINCT,   HALE   COUNTY. 

Merritt  House,  the  Eepublican  supervisor,  alleges  that  as  the  ballot- 
box  was  being  taken  from  one  room  to  another  after  the  polls  were 
closed,  and  before  the  votes  were  counted,  it  was  carried  away  and  a 
false  one  substituted.  This  removal  from  one  room  to  another  was 
made  with  the  consent  of  all  of  the  officers  of  the  election,  liobert 
Lee  swears  that  the  ballot-box  was  not  changed  (R.,  p.  487).  He  was  a 
Eepublican  inspector.  In  his  testimony,  Lee  is  corroborated  by  the 
testimony  of  M.  S.  Harron,  a  clerk  of  the  election,  and  T.  L.  Huggins, 
an  inspector.  The  testimonj^  of  House  stands  alone,  unsupported  by 
other  evidence.  But  if  the  boxes  were  changed,  and  the  ballots,  if 
counted,  not  the  actual  ballots  cast,  we  would  be  met  with  a  great  diffi- 
culty in  attempting  to  correct  the  vote — and  this  is,  that  it  is  not  shown 
by  the  testimony  what  was  the  character  or  contents  of  the  return  by 
the  inspectors  of  the  election  from  this  precinct,  and  what,  if  any,  vote 
from  this  precinct  was  counted  by  the  board  of  canvassers  of  the  county 
in  estimating  the  votes  of  the  county.  How,  then,  could  the  true  vote 
be  added  to  the  vote  of  the  county  without  first  subtracting  the  false 
vote  ? 

It  is  nowhere  shown  what  ballots  were  in  the  alleged  false  ballot-box ; 
the  testimony  does  not  show  whether  or  not  they  were  counted  and  a 
return  of  them  made.  If  this  obstacle  could  be  overcome,  the  next 
inquiry  would  be  as  to  the  actual  vote  polled.  Merritt  House  attempts 
to  give  an  estimate  (R.,  p.  301),  but  admits  (R.,  p.  305)  that  he  kept  a 
"  tally  "  of  only  eight  v^otes,  and  that  he  could  not  swear  with  any  de- 
gree of  certainty  to  the  number  of  votes  cast  for  contestant. 

E.  J.  Lavender,  who  was  not  an  ofiBcer  of  the  election  says  that  he 
stood  outside  the  voting  place  and  took  down  the  names  of  398  electors 
who  voted  for  contestant;  a  list  of  those  names  was  put  in  evidence, 
and  although  the  number  398  appears  upon  it  as  a  total,  only  332  names 
are  found  in  the  list.  Sampson  Hill  also  gives  the  number  of  votes  for 
contestant  at  398,  and  puts  in  evidence  a  list  of  the  persons  voting, 
showing  133  names  and  395  tallies,  though  the  witness  states  upon  the 
pa])er  that  the  total  was  399. 

It  is  plain  that  the  testimony  of  these  witnesses  as  to  the  vote  cast  for 
contestant  was  not  based  upon  the  account  kept  by  them,  but  upon  an 
agreement  reached  by  them  subsequent  to  the  election.  Testimony  like 
this  cannot  "be  substituted  for  the  testimony  of  the  voters  themselves  as 
to  how  they  voted.  It  will  be  seen  how  impossible  it  is  from  this  testi- 
mony to  arrive  at  a  satisfactory  conclusion  as  to  what  the  vote  was. 


5^  DIGEST    OF    ELECTION    CASES. 

PERRY  -COUNTY. 

The  allegations  that  the  inspectors  of  election  appointed  by  the  county 
board  of  supervisors  in  this  county  were  not  fairly  representative  of 
both  parties,  the  Republican  as  well  as  Democratic,  is  not  supported 
by  the  proof. 

Mr.  Billingsly  shows  (R.,  p.  254)  that,  as  chairman  of  the  executive 
committee  of  the  Republican  party  of  this  county,  he  made  the  request 
to  be  allowed  to  name  a  Republican  inspector  for  each  voting  place,  and 
that  no  attention  was  paid  to  his  request ;  but  there  is  no  testimony^ " 
positive  in  its  character,  to  show  that  the  Republicans  were  not  i)roperly 
re[)reseuted  among  the  board  of  inspectors  at  each  voting  place.  The 
returns  from  live  precincts  of  this  county  are  attacked  by  contestant  j 
the  precincts  are  Hamburg,  Scott's,  Walthall,  Marion  Box  I,  and  Cun- 
ningham. They  are  attacked  upon  the  ground  that  the  returns  made 
were  not  in  accordance  with  the  vote  as  cast,  a  fraudulently  incorrect  re- 
turn being  made,  as  alleged,  from  each  of  these  precincts  by  the  inspect- 
ors. At  the  outset  we  are  met  bj'  great  difficulties  applicable  to  all 
these  precincts,  owing  to  the  defect  in  contestant's  proof,  and  these  are: 

First.  There  is  no  evidence  as  to  the  character  or  contents  of  the  re- 
turns made  from  any  of  these  preciucts  by  the  several  boards  of  inspect- 
ors and  the  board  of  supervisors  of  the  county,  or  whether  any  return 
at  all  was  made. 

Second.  There  is  no  evidence  that  the  vote  as  returned  from  any  of 
these  precincts  was  counted  by  the  board  of  canvassers  in  estimating 
the  vote  of  the  county.  How,  then,  can  the  v.ote  of  the  county  be  cor- 
rected, by  the  addition  of  the  alleged  true  vote  until  it  be  known  whether 
or  not  the  false  votes  should  be  deducted  from  them  ?  As  b;\  law  re- 
quired there  was  on  file  in  the  office  of  judge  of  probate  of  the  county 
theoriginal  returns  from  each  of  these  precincts,  and  from  all  of  the  other 
precincts  of  the  county  from  which  returns  were  made.  There  was  also 
on  file  an  official  statement  prepared,  as  required  by  law,  by  the  county 
board  of  canvassers,  and  signed  by  them,  showing  the  vote  for  each 
candidate  from  each  precinct  as  found  and  estimated  by  them.  Neither 
these  returns  nor  this  statement  was  put  in  evidence;  nor  is  it  ])roved 
what  was  the  vote  of  the  other  i)recincts  of  the  county  about  which 
there  is  no  contest.  It  appears  to  us,  therefore,  impossible  in  the  present 
'condition  of  the  i>roof  to  correct  the  vote.  The  presumption  of  law  that 
an  officer  performs  his  duty  cannot  be  applied  to  cases  of  this  character 
to  suijply  the  defect  in  the  proof.  The  law  would  presume,  in  the  ab- 
sence of  all  proof,  that  the  inspectorsat  the  several  preciucts  made  a  cor- 
rect return  in  accordance  with  the  vote  as  actually  cast,  but  the  law  will 
not  ])resume  that  they  made  a  fraudulent  return.  But  unless  the  re- 
turns, il  made,  were  fraudulent,  contestant  has  nothing  to  complain  of. 
All  the  presumptions  of  law  are  in  favor  of  the  correctness  and  good  faith 
of  the  inspectors.  Fraud  is  never  presumed,  it  must  be  i)roved  ;  and  the 
House  will  not  presume,  in  the  absence  of  positive  ])roof,  that  the  in- 
spectors made  a  fraudulent  return.  This  principle  of  law  is  so  clear  and 
so  universally  lecognized  as  to  require  no  further  argument  or  reference 
to  authorities.  We  shall  examine  the  testimony  in  relation  to  the  vari- 
ous precincts  to  see  if,  regardless  of  the  defects  in  the  proof  already 
l>ointed  out,  fraud  on  the  part  of  the  officers  of  the  election,  or  the  true 
vote  as  cast  is  satisfactorily  shown  by  the  prt  of. 

HAMBURG  PRECINCT. 

B.  F.  Watson  was  the  Republican  United  States  supervisor;  the  in- 


SMITH    VS.    SHEtLEY,  '     57 

specters  were  composed  of  two  Democrats  and  one  Republican  (R.,  p. 
105).  Watson  swears  that  after  the  polls  were  closed  the  ballot-box 
in  which  the  ballots  voted  had  been  cast  was  fraudulently  changed  for 
a  false  box  containing  fraudulent  ballots.  He  says  that  only  one  of  the 
inspectors,  Juan  Harris  (R.,  p.  107),  was  engaged  in  changing  the  box, 
and  that  though  he  was  present  and  saw  the  change  made  he  said  noth- 
ing about  it,  and  called  no  one's  attention  to  it  at  the  time.  He  made 
no  protest  or  objection  whatever  (R.,  p.  110).  The  two  ballot-boxes,  the 
true  and  the  false  one,  were  in  the  same  room,  and  yet,  according  to  his 
own  statement,  he  permitted  the  ballots  in  the  false  box  to  be  counted 
as  the  genuine  ballots,  and  did  not  utter  a  word  of  objection.  Witness, 
as  United  States  supervisor,  made  a  report  giving  contestant  338  votes, 
contestee  40,  aud  Mr.  Stevens  5,  making  383,  although  he  himself  states 
there  were  only  378  votes  cast  (R.,  p.  110).  ]^row  when  asked  from  what 
source  he  obtained  the  data  from  which  to  make  his  report,  he  says :  •'  I 
knew  the  sentiments  of  the  people,  and  just  how  they  would  vote,  and 
I  taken  a  record  of  the  committee's  list,  and  got  my  information  from 
them."  He  kept  no  list  or  record  himself  (R.,p.  110).  The  other  witnesses 
as  to  the  actual  vote  are  Green  Johnson,  a  deputy  marshal,  and  J.  T. 
Harris.  They  were  not  officers  of  the  election,  and  were  not  in  the  room 
where  the  election  was  being  conducted.  This  room  was  in  the  second 
story  of  the  building,  and  to  cast  his  ballot  the  voter  had  to  enter  the 
building  on  the  first  floor  and  then  ascend  a  flight  of  stairs  (R.,  p.  256). 
There  was  a  "committee"  of  Republicans,  five  in  number,  to  keep  an 
account  of  the  Republican  vote  as  cast,  and  they  selected  one  Silas  Ben- 
jamin to  take  down  the  names  of  the  Republican  voters  (R.,  p.  144). 
But  not  one  of  these  committeemen,  nor  Benjamin,  is  examined  as  a^ 
witness,  nor  is  the  list  of  names  kept  by  Benjamin  put  in  evidence. 
The  witness  Johnson  states  that  Benjamin  told  hifu  that  there  were  340 
names  in  his  book,  and  he  has  no  other  knowledge  of  its  contents  (R., 
p.  146).  J.  T.  Harris  kept  a  tally  of  323  voters  whose  tickets  he  saw  iu 
their  hands,  but  he  states  that  he  does  not  know  whether  these  tickets 
were  actually  cast,  as  he  did  not  see  one  of  them  voted  (R  ,  p.  256).  The 
voters  themselves  are  not  examined. 

SCOTT'S   PRECINCT. 

The  officers  of  election  at  this  precinct  were  Charles  W.  Turpiu,  Johi> 
C.  Lee,  and  Lazarus  Avery,  inspectors;  E.  N.  Driver  and  E.  Evans, 
clerks;  and  Walter  Lowery,  [Jnited  States  sui)er\'isor;  Lee  and  Lowery 
were  Republicans.  Lowery  swears  that  Tiirpin  gave  him  $35  as  a  bribe 
to  permit  him  (Turpin)  to  exchange  Smith  tickets  for  Shelley  tickets,  and 
that  he  took  the  money,  put  it  in  his  pocket,  and  has  ret.iined  it  ever 
since  (R.,  p.  159),  and  permitted  the  fraud  to  be  coiuniitted.  (H.,  p.  157.) 
His  testimony  is  corroborated  by  no  one  ;  its  truth  is  positively  denied 
by  Lazarus  Avery,  the  Republican  inspector  and  witness  for  contestant* 
who  received  the  tickets  from  the  voters  throughout  the  day.  It  is  also 
positively  and  unequivocally  denied  by  Tnrpin,  Lee,  Driver,  and  Evans, 
the  other  officers  of  the  election.  Tlie  character  of  the  frau<l,  as  de- 
scribed by  Lowery,  was  that  Turpin  and  Lee  exchanged  Smith  tickets 
by  putting  them  in  their  pockets  and  substituting  others,  and  erasing 
Smith's  name  from  the  ticket  and  substituting  Stevens's  therefor.  1  liis, 
of  course,  could  not  have  been  done  without  the  knowledge  of  Avery, 
who  was  standing  l»y  the  ballot-hox  during  the  day.  Turpin  also  denies 
most  positively  giving  a  bribe  to  Low^ery,  aud  the  other  officers  of  elec- 
tion swear  that  they  are  entirely  ignorant  of  such  an  occurrence.     Mr. 


58  DIGEST    OF    ELECTION    CASES. 

liobert  Ferryman  (R.,  p.  485)  states  that  five  or  six  days  after  the  elec- 
tion Lowery  said  to  him  that  he  saw  nothing  done  at  the  election  but 
what  was  fair,  and  that  it  was  not  true  that  any  money  had  been  paid 
to  him  (Lowerj'). 

Perrjniau  swears  that  he  knows  Lowery's  character  for  truth  in  the 
neighborhood  where  he  lives,  and  would  not  believe  him  on  oath.  Low- 
ery states  that  he  kei)t  an  account  of  the  vote  as  it  was  cast.  He  says, 
"  1  would  get  one  letter  of  the  ticket  as  it  passed  in  and  that  would  be 
Q  or  M"  (R.,  p.  160),  but  shortly  after  he  states  in  regard  to  the  man- 
ner in  which  the  ballots  were  cast, ''  some  would  be  folded,  some  with 
two  ends  doubled  together,  and  some  would  be  wide  open.''    (R.,  p.  161.) 

Yet  he  pretends  in  this  way  to  have  kept  a  tally  of  all  the  Republican 
votes  cast  (R.,  p.  161).  The  law  requires  the  votes  to  be  folded,  and 
William  Henry,  a  witness  for  contestant,  says  that  he  saw  the  ballots 
tor  contestant  issued  to  the  voters,  each  of  whom  was  given  two,  and 
then  says  the  voters  were  shown  by  the  persons  distributing  these  tick- 
ets how  to  fold  them  as  they  voted  (R.,  p.  297).  Henderson  kept  an 
-account  of  the  voters  for  contestant,  as  the  tickets  were  distributed  to 
them,  but  he  did  not  read  these  tickets.  He  says,  "  I  knew  they  were 
"Smith  tickets,  because  the  men  who  had  them  only  had  Smith  tickets." 
But  he  read  none  of  these  tickets  (R.,  p.  297),  au<l  the  i)ersons  who 
actually  did  distribute  the  tickets  to  the  voters  are  not  examined. 
With  the  exception  of  Lowery  he  is  the  only  witness  for  contestant  as 
to  the  vote  actually  cast. 

WALTHALL  PRECINCT. 

There  is  nothing  in  the  testimony  as  to  which  political  party  the  in- 
spectors at  this  precinct  belonged ;  there  is  no  evidence  as  to  what  the 
vote  actually  was  as  ascertained  by  the  board  of  inspectors.  The  Re- 
publican United  States  supervisor  did  not  act;  his  name  was  Enoch 
•Jones.  The  witness,  William  Q.  Smith,  states:  t  saw  him  (Jones)  make 
application  to  be  admitted  as  United  States  supervisor,  and  he  was  re- 
fused by  Mr.  Pollard,  one  of  the  inspectors  (R.,  p.  169).  Mr.  Smith  did 
not  live  in  this  precinct,  but  lived  in  Autauga  County,  in  another  Con- 
gressional district.  He  was  unable  to  say  where  Jones,  the  supervisor, 
resided.  Xow  we  submit  that  if  this  supervisor  Was  duly  commissioned 
and  authorized  to  act  as  such  officer,  he  need  not  have  called  upon  Mr. 
Pollard,  one  of  the  inspectors,  for  permission  to  act,  and  he  ought  not 
to  have  refrained  from  acting  merely  on  the  refusal  of  Mr.  Pollard  to 
grant  him  permission.  He  does  not  appear  to  have  called  upon  the 
other  inspectors  for  permission,  or  for  a  recognition  of  this  right.  He 
had  as  high  a  right,  if  not  a  higher  one,  to  be  at  the  voting  place  as 
Mr.  Pollard  or  any  officer  of  the  election.  It  is  not  pretended  that  he 
attemi)ted  to  exercise  his  right  notwithstanding  the  refusal  of  Mr.  Pol- 
lard, or  made  any  attempt  to  enter  the  room  where  the  ballot-box  was 
placed.  It  is  not  pretended  that  any  violence  to  his  person  was  used 
■or  threatened  to  be  used  against  him  ;  the  suj^ervisor  failed  to  perform 
his  duty  without  sufficient  reason.  It  does  not  appear  to  us  that  the 
presumption  which  exists  in  the  case  of  all  officers  acting  within  the 
scope  of  their  authority,  thnt  their  acts  are  correct  and  lawful,  is  im- 
peached or  overcome  by  the  failure  of  this  supervisor,  under  the  circum- 
stances, to  perform  his  duty. 

MARION  PRECINCT,  BOX  NO.  1. 

The  evidence  as  to  this  precinct  is  entirely  inadequate  to  establish 


SMITH    VS.    SHELLEY.  59 

fraud  or  eveu  miscomluct  on  the  part  of  the  officers.  S  B.  Price,  United 
States  supervisor,  states  that  after  the  vote  for  Smith  and  Stevens  was 
counted,  he  saw  one  of  the  inspectors,  with  some  tickets  in  his  hand,  go 
toward  the  water-bucket  and  remain  long;  enough  to  take  a  ilrink,  but 
he  coukl  not  say  that  anything  wrong  was  attempted  or  intended  (R., 
J).  2()7).  At  anotlier  time  he  saw  one  of  the  inspectors  lioUl  tickets  in- 
his  hnnd  and  he  stopped  taking  tally  to  watch  him,  but  he  saw- him  do 
nothing  wiong  with  these  tickets,  nor  does  he  know  what  kind  of  tickets 
they  were.  When  the  i)olls  were  closed  and  the  time  for  counting  the 
ballots  a  I  rived,  it  was  found  that  the  ballot  box  was  unlocked,  but  it  is 
not  pretended  that  any  one  knew  this,  and  upon  openinjr  the  box  to 
count  the  ballots  it  was  found  that  the  cover  was  tight  and  was  lifted 
with  some  difficulty.  (See  the  testimony  of  Price,  the  Rei^ublican  super- 
visor, E.,  p.  205,  and  Ed.  Spaulding,  the  Republican  inspector,  R.,  p. 
272.)  The  box  was  not  removed  from  the  table  during  the  daj',  and 
Spaulding  and  Price  were  at  hand  near  to  the  box  throughout  the  day. 
Price,  as  supervisor,  made  a  report  conforming  t)  the  return  bj'  the  in- 
spectors (R.,  p.  402),  and  it  was  not  until  the  18th  of  JiTovember  that  he 
made  a  different  report,  for  the  reason,  as  he  says : 

Tlie  t\)riiier  report  was  not  according  with  ail  the  voters  to  wlioin  I  talked  aliout  it, 
said  al)out  it,  and  I  have  talked  to  a  great  many. 

James  F,  Bailey  kept  a  tally  of  655  colored  men  who  voted  (R.,  p. 
259),  and  he  estimates  that  these  votes  were  equally  divided  between 
Mr.  Smith  and  Mr.  Stevens  (R.,  p.  260). 

M.  B.  Boyd  kipt  an  account  of  the  votes  polh  d,  but  admits  (R.,  p. 
278)  that  he  cannot  state  from  his  own  knowledge,  with  any  degree  of 
accuracy,  the  number  of  votes  that  any  candidate  received.  Of  course 
the  mere  estimates  and  opinions  of  persons  who  were  not  officers  of  elec- 
tion, when  they  are  confessedly  uncertain  and  incompetent,  must  go  for 
naught.  Especially  so  in  cases  where  no  fraudulent  acts  on  the  part  of 
the  officers  of  election  are  proved. 

CUNNINGHAM     PRECINCT. 

The  testimony  does  not  show  to  w  hich  political  party  the  inspectors 
belonged.  Wm.  Jenkins  did  not  act  as  United  States  supervisor  in  this 
precinct  although  he  had  been  duly  appointed  and  commissioned.  The 
efforts  of  Jenkins  to  act  are  described  by  the  witness  Nix  Stevens,  as 
follows  (R.,  p.  284) : 

He  walked  up  presenting  his  commission,  informing  the  inspectors  that  he  had  been 
appointed  supervisor  of  that  body  and  was  prepared  to  discharge  the  duties  of  that 
office.  Mr.  Cook  (returning  officer)  met  him  and  said:  "Old  man,  you  can't  act  here. 
You  are  not  a  resident  of  this  beat." 

It  does  not  appear  that  Jenkins  made  any  further  effort  to  act.  Jenkins 
did  not  reside  in  the  beat,  but  lived  in  Scott's  beat  (R.,  p.  300).  This 
being  the  case,  he  was  not  a  qualified  voter  of  the  precinct  and  there- 
fore not  (jualified  to  serve  as  United  States  supervisor  (see  Sec.  28,  U. 
S.  Rev.  Stat.).  Without  discussing  the  abstract  legal  question  as  to 
whether  Jenkius,having  been  duly  commissioned,  should  have  been  per- 
mitted to  act  though  disqualified  by  law,  we  submit  that  neither  the 
circumstances  of  the  refusal  as  above  described  nor  the  failure  of  Jenkins 
upon  this  refusal  to  act  are  sufficient  to  create  a  presumption  of  fraud 
against  the  officers  of  the  election  or  to  overturn  the  presumption  that 
their  acts  were  in  accordance  with  the  law.  * 

Beverly   Smith,  Nix  Stevens,  and  Henry   Wells  distributed  contest- 


60  DIGEST    OF    ELECTION   CASES. 

ant's  tickets  to  the  voters,  according-  to  the  testimony  of  Wells,  but 
Nix  Stevens  gises  the  names  of  three  i»ersous  in  addition  who  distrib- 
uted these  tickets  (R.,  p.  282).  Stevens  gave  out  all  the  tickets  he 
had  in  his  hand  (R.,  p.  275).  Gave  to  some  two  and  others  one  ticket^ 
but  he  does  not  attempt  to  say  how  many  voters  took  tickets  from  him^ 
nor  can  he  swear  positively  that  the  persons  who  took  tickets  from  him 
voted  the  tickets  that  he  gave  them  (R.,  p.  281).  Nix  Stevens  counted 
300  and  odd  tickets  which  were  distributed  to  the  voters,  but  when 
asked  if  he  could  swear  of  his  own  knowledge  that  over  300  votes  were 
cast  for  contestant  (R.,  p.  284),  replies : 

I  cannot  swear  ont  of  my  o^n  knowledge,  but  the  sentiment  said  so  and  lam  bound 
to  believe  so. 

Beverly  Smitli  states  that  he  saw  200  persons  vote  for  contestant  be- 
cause he  saw  their  ballots  before  they  voted,  and  watched  them  when 
they  voted  ;  but  when  asked  if  he  could  swear  of  his  own  knowledge 
that  these  200  persons  cast  the  ballots  that  they  showed  him,  replies  : 
"  That  is  my  belief  about  it "  (R.,  p.  299).  In  the  absence  of  any  proof 
of  fraud  on  the  part  of  the  oftjcers  of  election,  certainly  these  calcula- 
tions and  opinions  of  persons  not  appointed  to  act  as  officers  of  election,, 
mere  lookers-on  without  official  responsibility,  cannot  be  sufficient  ta 
set  aside  the  returns. 

pope's  precinct. 

One  of  the  inspectors  at  this  precinct  was  taken  sick  and  ceased  to 
act.  The  others  made  no  return  of  the  vote,  but  simply  put  the  tickets 
in  the  ballot-box.  sealed  up  the  box  and  deliverecj  it  to  the  returning^ 
officer.  These  ballots  are  not  put  in  evidence,  nor  are  the  v"<iters  exam- 
ined to  prove  what  the  vote  was.  Contestant  attempts  to  prove  the 
vote  by  other  evidences.     Henry  Robinson  (R.,  p.  16)  says : 

I  issued  about  40  tickets  there  that  day,  and  I  did  not  notice  what  the  voters  did 
with  them. 

Lindsey  McDaniel  says  (R.,  p.  317) : 

I  had  all  the  tickets,  and  then  I  gave  ont  about  600  with  Smith's  name  on  them,, 
and  all  I  saw  were  going  up  to  the  polls  with  them.  »  *  *  j  gave  each  voter  two 
tickets,  and  I  gave  it  to  them  so  that  if  anything  should  occur  that  tiiey  would  nave 
a  duplicate  to  show  whothey  voted  for,  and  I  saw  about  300  voters  who  had  Smith 
tickets  go  to  the  polls,  and  whether  they  put  them  in  or  not  I  cannot  say. 

This  witness  could  not  read,  and  only  knew  that  he  had  Smith  tickets 
because  a  man  told  him  so  (R.,  p.  318).  As  the  ballots  were  required  by 
law,  as  a  part  of  the  return  made,  to  be  kept  on  tile  in  the  office  of  the 
judge  of  probate,  contestant  could  easily  have  put  them  in  evidence,. 
I)roving  by  the  inspectors  that  they  were  the  ballots  cast,  and  thus  es- 
tablishing the  vote;  or,  failing  this,  he  could  have  proved  it  by  the 
testimony  of  the  voter.s.  But  as  it  is,  the  evidence  as  to  this  precinct 
makes  it  impossible  to  arrive  at  the  correct  vote. 

prairie  bluff,  avilcox  county. 

The  return  was  made  from  this  jtrecinct  to  the  board  of  canvassers  of 
the  county,  and,  as  shown  by  the  official  statement  in  evidence  (R.,  p. 
510),  the  vote  of  this  precinct  was  not  counted.  The  ballots  are  put  in 
evidence,  and  there  are  335  for  contestant  and  24  for  contestee,  if  the 
ballots  referred  tfi  on  pages  222  and  223  of  the  record  refer  to  this  pre- 
cinct. These  were  probably  the  ballots  that  were  cast  at  the  election, 
and  therefore  shouhl  be  counted,  335  for  contestant  and  24  for  contestee. 


SMITH  VS.  SHELLEY,  61 

CONCLUSION. 

We  have  sufficiently  indicated  our  views  as  to  the  evidence,  as  we  have 
examined  the  testimony  api)licable  to  the  various  counties  and  the  pre- 
cincts therein.  As  the  result  we  do  not  see  how,  without  violating  the 
well  established  rules  of  evidence,  without  accepting  mere  assumptions, 
speculations,  and  opinions  for  positive  proof,  without  presuming  that 
votes  were  given  to  contestant  and  contestee  by  the  county  boards  in 
estimating  the  vote  of  the  county,  upon  no  evidence  whatever  that  such 
votes  were  given,  or  in  many  cases  upon  no  evidence  whatever  as  to  the 
vote  which  was  given,  it  is  possible  to  reach  the  conclusion  that  the  con- 
testant has  shown  that  he  was  elected  or  that  the  contestee  was  not 
elected. 

We  will  add  that  there  are  some  precincts  to  which  we  have  not  re- 
ferred, because  it  will  not  be  pretended  that  the  vote  of  those  precincts 
is  changed  or  established  by  the  proof.  These  are  Bethel,  Kose  Bud, 
and  Canton,  in  Wilcox  County;  Brooks  precinct,  in  Lowndes  County; 
Camden,  Snowhill,  and  Pineapple  precincts,  in  Wilcox  County ;  and 
Selma,  Buruville,  and  Valley  Creek  precincts,  in  the  county  of  Dallas. 

We  therefore  recommend  the  adoj)tion  of  the  following  resolutions : 

1.  Resolved^  That  James  Q.  Smith  was  not  elected  as  a  Eepresentative 
to  the  Forty-seventh  Congress  of  the  United  States  from  the  fourth  Con- 
gressional district  of  Alabama,  and  was  not  entitled  to  occupy  a  seat  in 
this  House  as  such. 

2.  Resolved,  That  Charles  M.  Shelley  was  duly  elected  as  a  Repre- 
sentative from  the  fourth  Congressional  district  of  Alabama,  and  is  en- 
titled to  retain  his  seat  as  such. 


WIIiLIAM  M.   LOWE  vs.  JOSEPH  WHEELER. 

Eighth  Congressional  District  of  Alabama.  . 

In  this  case^a  large  number  of  votes  cast  for  contestant  were  rejected  and  not  counted 
because  the  ballots  bore  the  numerals  Ist,  2d,  3d,  &c.,  designating  the  electoral 
districts  of  the  State,  and  the  votes  of  various  precincts  were  challenged  on  the 
ground  of  fraud. 

Contestee  claimed  that  many  persons  voted  for  contestant  who  had  not  the  legal  qual- 
ifications :  that  they  were  minors  or  convicts  or  non-residents,  or  were  not  regis- 
tered. 

Held,  That  the  ballot  containing  the  numerals  do  not  infringe  upon  either  the  letter 
or  spirit  of  the  statute,  which  provides  that  "the  ballot  must  be  a  plain  piece  of 
white  paper,  without  any  figures,  marks,  rulings,  or  embellishmeuts  thereon." 

Where  returns  are  successfully  impeached  and  the  true  vote  is  proven  by  the  voters 
themselves  being  called  to  testify,  such  returns  must  be  corrected  as  proven. 

The  charge  of  voting  for  contestant  by  minors,  convicts,  and  non-residents  held  to  be 
not  proven. 

The  constitution  of  Alabama  nor  the  statutes  of  that  State  do  not  make  registration 
an  absolute  condition  or  prerequisite  of  voting. 

The  House  adopted  the  majority  report. 


62 


DIGEST  OF  ELECTION  CASES. 


May  17,  1882. — Mr.  Hazelton,  from  tlie  Committee  on  Elections, 
submitted  the  following 

BE  PORT: 

The  Committee  on  Elections,  to  whom  icere  referred  the  papers  relating  to 
the  contested-election  case  in  ike  eighth  Congressional  district  of  Ala- 
bama, having^  had  the  same  under  consideration,  submit  the  following  re- 
port : 

This  contest  comes  from  the  eighth  district  of  Alabama,  composed  of 
eight  counties  in  the  northern  part  of  the  State.  The  secretary  of 
state  certifies  as  follows,  as  appears  on  page  470  of  the  record : 

Returns  of  the  Congressional  election  in  the  eighth  district,  November  2,  1880. 


Counties. 


Joseph 
Wheeler. 


Wm.  L. 
Lowe. 


Morgan 

Madison  ... 
Limestone 
Lawrence  . 
Lauderdale 
Jackson  . . . 
Franklin 
Colbert  .... 

Total 


1,392 
2,825 
1,569 
1,517 
1,709 
1,948 
611 
1,237 


12,  808 


928 
3,501 
1,704 
1,993 
1,322 
1,680 

400 
1,237 


12,  765 


State  of  Alabama, 

Office  Secretary  of  State : 
I,  W.  W.  Screws,  secretary  of  state,  do  hereby  certify  that  the  above  is  a  correct 
copy  of  the  official  returns  of  an  election  held  in  the  eighth  Congressional  district  of 
Alabama  on  the  second  day  of  November,  A.  D.,  1880,  as  returned  to  thisoflSce  by  the 
supervisors  of  election  for  the  various  counties  composing  said  district,  at  which  elec- 
tion Joseph  Wheeler  and  William  M.  Lowe  received  the  votes  set  opposite  their  respect- 
ive names. 

Witness  my  hand,  at  office,  in  the  city  of  Montgomerv,  this  13th  day  of  January,  A. 
D.  1881. 

W.  W.  SCREWS, 

Secretary  of  State. 

Upon  this  return  the  contestee,  Mr.  Wheeler,  was  declared  elected  by 
fortj'^-three  majority,  and  received  the  certificate  of  election. 

It  is  conceded  that  a  much  greater  number  of  votes  were  received 
for  Lowe  than  appears  upon  said  certificate  of  the  secretary  of  state, 
and  it  is  practically  admitted  that  if  all  the  votes  cast  and  received 
for  Lowe  had  been  counted  and  returned  by  the  inspectors  of  the  elec- 
tion the  result  would  have  shown  the  election  of  Mr.  Lowe  by  a  large 
majority. 

As  the  case  is  presented  to  the  committee,  two  leading  and  controlling 
questions  arise  for  consideration  and  determination:  1st,  as  to  the 
proper  and  legal  form  of  the  ballot ;  and,  2d,  as  to  registration.  The 
evidence  discloses  that  in  order  to  declare  Mr.  Wheeler  elected  by 
forty-three  majority  the  inspectors  of  the  election  at  fourteen  out  of 
nearly  two  hundred  precincts  in  said  district  had  to  reject  and  did  re- 
ject in  the  count  601  ballots  cast  for  the  contestant. 

The  number  of  ballots  so  rejected  is  assumed  in  the  arguments  of 
contestee's  counsel  at  about  515. 

These  ballots  were  rejected  by  said  inspectors  because  they  had  on 


LOWE    VS.    WHEELER. 


65 


them  the  numerals  1st,  2d,  3d,  &c.,  designating  the  electoral  districts  of 
the  said  State.    The  rejected  ballots  were  in  the  following  form  and 
words : 


For  Electoks  for  President  and  Vice- 
President: 

STATE  AT  large. 

W.  L.  BRAGG. 
E.  A.  O'NEAL. 

DISTRICT  ELECTORS. 

l8t  District— D.  P.  BESTOR. 

2d  District— JOHN  A.  PAGGETT. 

3d  District— J.  F.  WADDELL. 

4th  District— JOHN  ENOCHS. 

5th  District— THOS.  W.  SADDLER. 

6th  District— J.  G.  HARRIS. 

7th  District— F.  W.  BOWDON. 

8th  District— H.  C.  JONES. 

FOR  CONGRESS — EIGHTH  DISTRICT. 

WILLIAM  M.  LOWE. 


For  Electors  for  President  and  Vice- 
President  : 

state  at  large. 
JAMES  M.  PICKENS. 
OLIVER  S.  BEERS. 

district  ELECTORS. 

Ist  District— C.  C.  McCALL. 

2d  District— J.  B.  TOWNSEND. 

3d  District— A.  B.  GRIFFIN. 

4th  District— HILLIARD  M.  JUDGE. 

5th  District— THEODORE  NUNN. 

6th  District— J.  B.  SHIELDS. 

7th  District— H.  R.  McCOY. 

8th  District— JAMES  H.  COWAN. 

FOR  CONGRESS — EIGHTH  DISTRICT. 
WILLIAM  M.  LOWE. 


And  the  statutes  to  be  construed  in  the  consideration  of  this  question 
are  as  follows : 

Alf  ACT  to  amend  section  276  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  by  the  general  aasemhly  of  Alabama,  That  section  276  of  the 
code  of  Alabama  be  amended  to  read  as  follows:  One  of  the  inspectors  must  receive 
the  ballot,  folded,  from  the  elector,  and  the  same  passed  to  each  of  the  other  inspectors,^ 
and  the  ballot  must  then,  without  being  opened  or  examined,  be  deposited  in  the 
proper  ballot-box. 

Approved  February  8,  1879. 

AN  ACT  to  amend  section  274  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  by  the  general  assembly  of  Alabama,  That  section  274  of  the 
code  of  Alabama  be  amended  so  as  to  read  as  follows:  The  ballot  must  be  a  plain 
piece  of  white  paper,  without  any  figures,  marks,  rulings,  characters,  or  embellish- 
ments thereon,  not  less  than  two  nor  more  than  two  and  one-half  inches  wide,  and 
not  less  than  five  nor  more  than  seven  inches  long,  on  which  must  be  written  or  printed. 


€4  DIGEST    OF    ELECTION    CASES. 

or  partly  written  and  partly  printed,  only  the  names  of  the  persons  for  whom  the 
elector  intends  to  vote,  and  must  designate  th*^  office  for  which  each  person  so  named 
is  intended'  by  him  to  be  chosen ;  and  any  ballot  otherwise  than  described  is  illegal, 
and  must  be  rejected. 

Approved  February  12,  1879. 

(Acts  Ala.,  1878-9,  page  72-'3.) 

A^  ACT  to  amend  section  286  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  hy  the  general  assembly  of  Alabama,  That  section  283  of  the 
code  of  Alabama  be  amended  so  as  to  read  as  follows,  viz: 

§  286  (264).  Manner  of  counting  out  votes. — In  counting  out,  the  returning  officer,  or  one 
of  the  inspectors,  must  take  the  ballots,  one  by  one,  from  the  box  in  which  they  have 
been  deposited,  at  the  same  time  reading  aloud  the  names  written  or  printed  thereon, 
and  the  office  for  which  such  persons  are  voted  for ;  they  must  separately  keep  a  calcu- 
lation of  the  number  of  votes  each  person  receives,  and  for  what  office  he  receives 
them ;  and  if  two  or  more  ballots  are  found  rolled  up  or  folded  together,  so  as  to  induce 
the  belief  that  the  same  was  done  with  a  fraudulent  intent,  they  must  be  rejected,  or 
if  any  ballot  containing  the  names  of  more  than  the  voter  had  a  right  to  vote  for,  the 
first  of  sueh  names  on  such  ticket,  to  the  number  of  persons  the  voter  was  entitled  to 
vote  for,  only  must  be  counted. 

Approved  February  13,  1879. 

C Acts  Ala.,  1878-'9,  p.  73.) 

The  contestee  in  this  case  insists  that  the  expressions  "1st  district," 
"2d  district,"  which  appear  on  said  ballot,  do  of  themselves  render 
the  ballots  illegal  under  said  section  274,  as  amended. 

This  statute  provides  that  the  "  ballot  must  be  a  plain  piece  of  white 
paper,  without  any  figures,  marks,  rulings,  or  embellishments  thereon." 
We  are  unable  to  conceive  how  this  form  of  ballot  infringes  upon  either 
the  letter  or  spirit  of  the  statute.  If  we  are  to  adopt  the  narrow  and 
strained  construction  of  this  statute  presented  by  the  contestee,  then 
we  must  assume  that  the  legislature  of  Alabama  iutended  to  impair  and 
destroy  the  integrity  of  the  legal  voting  power  of  the  State  instead  of 
securing  it  in  its  proper  rights,  because  it  would  be  impossible  to  pre- 
pare a  ballot  that  would  stand  the  test  of  such  a  construction,  and  that 
could  not  be  rejected  at  the  caprice  of  a  party  inspector  of  elections  for 
a  reason  as  valid  and  strong  as  that  presented  in  this  case.  Such  a  con- 
struction means  simply  disfranchisement  of  the  citizen,  and  makes  the 
law  itself  a  fraud  upon  the  freeman's  boasted  right  of  francliise.  We 
quote  with  favor  the  following  extract  from  the  contestant's  brief  on 
this  point : 

Does  the  use  of  the  numerals  or  figures  1st,  2d,  &c.,  make  the  ballot  illegal?  The 
intention  of  the  statute  is  to  be  looked  for  before  construing  it.  The  word  "figures" 
must  be  construed  in  connection  with  the  word  "marks,  rulings,  characters,  embel- 
lishments." If  a  construction  so  literal  as  that  suggested  by  this  objection  be  given 
this  statute,  no  legal  ballot  can  be  written  or  printed,  because  the  literal  meaning  of 
the  word  "  character,"  for  instance,  would  force  one  to  print  or  write  his  ballot  with- 
out making  a  letter,  for  a  letter  is  literally  a  "character."  A  rejection  of  those  bal- 
lots because  they  contained  the  letter  "o,"  the  "figure"  of  a  circle,  used  in  spelling 
contestant's  name,  would  not  have  been  further  from  a  correct  construction  of  the 
statute  than  the  one  which  holds  that  the  numerals  Ist,  2d,  &c.,  are  "figures"  with- 
in its  meaning.  The  meaning  is  clear.  The  word  "figures"refer8  to  "embellishments, 
characters,"  designs,  pictures,  or  prints  that  would  deprive  the  ballot  of  its  secrecy. 
The  ballot  must  not  contain  a  flag,  an  eagle,  or  other  device.  It  must  be  on  plain 
white  paper. 

It  has  been  a  long-standing  custom  throughout  the  South,  as  well  as 
the  North,  and  especially  in  Alabama,  to  designate  and  form  electoral* 
tickets  in  just  this  way,  and  no  one  ever  claimed  before  that  it  impaired 
the  secrecy  of  the  ballot  or  was  subject  to  the  feeble  objection  now  made 
against  it.     (Record,  page  1229.) 

The  act  to  amend  276  of  the  code  of  Alabama  declares  that — 

One  of  the  inspectors  mast  receive  the  ballot,  folded,  from  the  elector,  and  the 


LOWE    VS.    WHEELER,  65 

sanie^  passed  to  each  of  the  other  inspectors,  aud  the  ballot  must  then,  without  being 
opened  or  examined,  be  deposited  in  the  proper  ballot-box. 

The  act  to  amend  286  of  the  code  of  Alabama  provides  that — 

In  couutinj;  ont,  the  returning  officer  or  one  of  the  inspectors  must  take  the  ballots, 
one  by  one,  from  the  box  in  which  they  have  been  deposited,  .at  the  same  time  read- 
ing aloud  the  nauu's  written  or  i)rinted  thereon  aud  the  office  for  which  such  persons 
are  voted  for;  they  must  separately  keep  a  calculation  of  the  number  of  votes  each 
person  receives  and  for  what  office  he  receives  thom;  and  if  two  or  more  ballots  are 
found  rolled  up  or  folded  together  so  as  to  induce  the  belief  that  the  same  was  done 
with  a  framlnleut  intent  they  must  be  rejected;  or  if  any  ballot  containing  the  names 
of  more  than  the  vf)ter  had  a  right  to  vote  for,  the  first  of  such  names  on  such  ticket 
to  the  number  of  persons  the  voter  was  entitled  to  vote  for,  ouly  must  be  counted. 

We  couclude,  from  reading*  and  constriiiuo:  these  sections  together, 
that  the  rejected  ballots  were  legal,  and  should  have  been  counted. 

Mr.  Webster,  in  the  Rhode  Island  case,  stated  admirably  the  two 
governing  principles  of  the  American  system  of  suffrage: 

The  first  is  that  the  right  of  suffrage  shall  be  guarded,  protected,  aud  secured 
against  force  aud  against  fraud. 

The  second  is  that  its  exercise  shall  be  prescribed  by  previous  law;  its  qualifica- 
tions shall  be  prescribed  by  previous  law;  the  time  aud  place  of  its  exercise  shall  be 
prescribed  by  previous  law ;  the  manner  of  its  exercise,  under  whose  supervision 
(always  sworn  officers  of  the  law),  is  to  be  prescribed.  And  then  again  the  results 
are  to  be  certified  to  the  central  power  by  some  certain  rule,  by  some  known  public 
officers,  in  some  clear  and  definite  form,  to  the  end  that  iico  ihini/s  may  be  done: 

First,  that  every  man  entitled  to  vote  may  vote;  second,  -that  his  vote  may  be  sent 
forward  and  counted,  and  so  he  may  exercise  his  part  of  sovereignty  in  common  with 
his  fellow-citizens. 

In  a  spirit  as  broad  as  this  the  bill  of  rights  of  the  constitution  of 
Alabama  (sec.  34)  declares  that  "the  right  of  suffrage  shall  he  protected 
hy  laics  regulating  elections,^^  and  prohibiting,  under  adequate  penalties, 
all  undue  influences,  &c. ;  and  the  constitution  (art.  8,  sec.  2)  declares 
that  "all  elections  by  the  people  shall  be  by  ballot." 

The  right  of  suffrage  thus  guaranteed  by  the  constitution  of  Alabama 
cannot  be  imperiled  or  destroyed  by  any  legislative  enactment  whose 
construction  makes  this  great  constitutional  right  of  the  freeman  to 
hang  upon  the  caprice  or  whim  of  the  partisan  inspector  of  elections, 
which,  if  exercised,  as  in  this  case,  must  inevitably  and  for  all  time 
sacrifice  all  the  substantial  rights  of  citizen  franchise  to  doubt,  shuf- 
fling, and  uncertainty. 

The  style  in  which  they  were  printed  does  not  violate  the  secrecy  of 
the  ballot.  They  were  printed  on  plain  white,  paper,  without  anything 
whatever  upon  them  to  betray  their  character  or  contents. 

It  is  contended  by  the  contestant  that  this  peculiar  construction  of 
the  law  of  Alabama  had  its  origin  in  the  following  circular,  issued 
and  i)laced  in  friendly  hands  by  the  chairman  of  the  Democratic  com- 
mittt-e,  just  before  and  on  the  day  of  election.  The  notice  is  at  least 
significant : 

Dkak  Sir:  As  soon  as  the  polls  are  closed,  inform  the  inspectors  of  the  election  that 
the  Lowe  tickets  with  Hancock  electors  on  them  are  illegal.  They  contain  the  figures 
1st,  2d,  &c.,  desiguatingthe  district.  Theseare  marks  or  figures  which  are  prohibited 
by  the  election  laws  (see  acts  1878-'79,  page  72),  and  all  such  tickets  should  be  rejected 
when  the  votes  are  counted,  after  the  polls  are  closed. 

[Lidorsed  on  back  in  writing  :] 
To  be  shown  only  to  very  discreet  friends. 

But  we  beg  leave  for  a  moment  to  refer  to  the  bearing  of  the  laws  of 
the  United  States  ui)on  this  question.     Congress  has  the  power  (article 
1,  section  4)  "  to  make  or  alter"  State  regulations  as  to  "  the  manner" 
H.  Mis.  35 5 


i 


66  *    DIGEST  OF  ELECTION  CASES. 

of  holding  Congressional  elections.  In  section  27,  Eevised  Statutes, 
Congress  has  enacted  that  "  all  votes  for  Representatives  in  Congress 
must  be  by  printed  or  written  ballots."  This  pro\ision  as  to  the  ballot 
is  exclusive  and  supreme  so  far  as  it  goes.  The  States  cannot  alter  it. 
See  also  sections  2012,  2017,  2018  of  the  Revised  Statutes.  These  sec- 
tions relate  to  the  appointment  of  supervisors  and  to  the  definition  of 
their  powers  and  duties  in  national  elections. 

The  evidence  shows  that  the  following  votes  for  contestant  were  ille- 
gally rejected  in  the  count  on  the  ground  before  stated: 

KEJECTED  VOTES. 

Votes.     Eecord  page. 

BigCreek 7  346-8-9 

Chickasaw 8  404 

Courtland 65  496-7 

Danville 42  382 

Decatur 3  376 

Elkmont 56  339-341-3 

Falkville w..  97  370-:3-5 

Flint 76  33  to  35 

Florence 4  908 

Green  Hill 22  1388 

Huntsville 61  37-^1-2-6-7-8 

Kash's 2  309 

Ma<li8on 33  130-137-9 

Meridianville  (No.  1) 2  294-5 

Owen's  Cross-Roads 31      '    140-3-8 

PoplarRidge 41  150-3 

Ruseellville 51  394-6-7 

Rejected  votes 601 

The  evidence  shows  that  these  votes  were  cast  for  Mr.  Lowe.  The 
Flint  box,  with  76  votes  for  contestant  and  59  votes  for  contestee,  is 
put  down  with  the  rejected  votes  for  convenience,  although  the  whole 
box  was  rejected  on  account  of  some  alleged  irregularity  on  the  part  of 
the  election  officers.  It  is  familiar  law  that  innocent  parties  must  not 
be  prejudiced  by  such  irregularities,  nor  deprived  of  their  rights  by 
matters  occurring  after  the  election,  and  over  which  they  had  no  control. 
Flint  box,  therefore,  must  be  counted.  (See  record,  page  365,  367,  369. 
See  Piatt  vs.  Goode,  Digest  Election  Cases  1871-'6,  page  650 ;  McCrary 
on  Elections,  page  145.) 

Meridianville,  Box  No.  2. 

The  inspector's  returns  from  this  box  give  contestant  47  votes,  18  less 
than  the  number  received  by  the  rest  of  the  opposition  ticket  with  con- 
testant's name  upon  it.  Every  State  officer  at  this  box,  in  direct  violation 
of  the  State  law,  was  "a  pronounced  Democrat  and  Wheeler  man." 
The  friends  of  contestant  determined,  under  the  circumstances,  to  keep 
a  tally-list  of  contestant's  voters,  as  a  check  upon  the  inspectors. 

John  Wesley,  who  kept  said  tally -list,  swears  as  follows  : 

Qnestion.  Was  tliere  or  not  an  agreement  between  you  and  other  colored  men  to  en- 
deavor to  ascertain  and  keep  the  number  of  the  Garfield  and  Arthur  and  Lowe  vote  ? 

(Contestee  objects  to  the  leading  character  of  this  question.) 

Answer.  There  was. 

Q.  What  was  your  part  in  carrying  out  such  agreement  ? — A.  I  don't  understand 
you.     What  did  I  do  is  your  meaning? 

Q.  Yes,  sir.  I  mean  what  did  you  do  in  endeavoring  to  ascertain  the  number  of  Gar- 
field and  Lowe  votes  ? — A.  I  was  placed  around  near  the  window,  in  front  of  the  win- 


LOWE    VS.    WHEELER.  67 

dow,  and  remaineil  there  all  day  .and  taken  the  unmber  of  tickets  as  the  men  marched 
to  the  pulls,  and  put  them  in  as  they  m.arched  two  by  two  to  the  polls  and  voted.  I 
stood  where  I  could  see  along  the  line  and  see  that  the  men  carried  the  ballot,  as  the 
resolution  was  passed,  without  pntting  their  hands  in  their  pockets. 

Q.  Were  these  men  whom  you  were  to  see  and  did  see  so  carry  their  ballots  the 
same  men  whom  Wade  Blankenship  and  others  had  distributed  the  ballots  to  T — A. 
They  are. 

Q.  Did  you  put  down  in  any  way  the  number  of  men  that  you  saw  come  to  the  polls 
having  received  ballots  from  Wade  Blankenship  and  others  and  deposited  them  ? — A. 
I  did. 

Q.  How  did  you  put  down  the  number;  in  what  way? — A.  Marked  them  on  a  piece 
of  paper  and  made  a  tally  of  it;  live  in  a  tally. 

Q.  Have  you  now  in  your  possession  that  paper  ? — A.  I  have. 

Q.  Please  produce  it.     (Witness  produces  paper.) 

Q.  File  that  paper  with  your  deposition,  having  the  stenographer  mark  it  Exhibit 
No.  1,  to  identify  it. 

Exhibit  No.  1. 

VWVVVVWVVVII. 

A.  I  have  done  so. 

Q.  How  many  voters  does  this  paper  show  you  kept  account  oft — A.  Sixty-six;  it  is 
sixty-seven  this  paper  shows  I  kept  account  of. 

Q.  How  many  of  them  were  colored  men  ? — A.  Sixty-six. 

Q.  Who  was  the  other  one  ? — A.  A  white  man ;  not  personally  acquainted  with  him  ; 
they  say  his  name  was  Mr.  Wm.  Jones.  ;»i  ±     | 

Q.  Why  did  you  put  his  name  on  the  list  ? — A.  As  he  voted  for  Mr.  Lowe.  " 

Q.  And  made  it  known,  did  he  not,  that  he  was  so  voting  ? — A.  He  did. 

Q.  Were  you  present  at  the  meeting  of  the  colored  men  held  after  they  learned  that 
only  forty-seven  vot«s  were  counted  at  box  number  two  for  Colonel  Lowe? — A.  I  was. 

Q.  Was  or  not  a  list  of  men  who  claimed  that  they  had  voted  for  Colonel  Lowe  madc^ 
out  at  that  meeting  ? — A.  There  was. 

Q.  Were  or  not  the  men  whose  names  appeared  on  that  list  the  same  men  of  whom 
you  kept  the  count  by  tallies  ? — A.  Yes,  sir.     (Record,  pages  243,  244.) 

On  cross-examination  he  said  : 

Q.  It  is  true,  then,  is  it  not,  that  all  you  know  about  how  people  voted  atMeridian- 
ville  precinct  is  this :  First,  that  you,  while  standing  off  some  twenty  or  thirty  feet, 
checked  off  67  marks  as  you  saw  67  men  go  xip  and  put  in  their  ballots,  and  that  after- 
wards, at  a  club  meeting,  66  men  gave  in  their  names  and  said  as  they  gave  in  their 
names  that  they  voted  for  Lowe? — A.  I  saw  the  tickets  distributed,  and  as  they 
marched  to  the  polls  and  handed  them  in  I  marked  them  down.     (Record,  page  247.) 

The  reason  why  these  colored  men  passed  the  resolution  that  they 
would  hold  their  ballots  openly  when  they  walked  up  to  vote  is  ex- 
plained by  this  witness : 

Q.  I  wish  you  would  give  the  full  reasons  that  induced  the  colored  men  to  pass  the 
resolution  and  to  act  upon  it  by  holding  their  tickets  from  their  bodies,  without  put- 
ting their  hands  in  their  pockets,  as  they  approached  the  polls  and  deposited  them. — 
A.  It  had  been  said  throughout  our  neighborhood  that  the  colored  people  would  tell 
each  other  that  they  would  vote  one  ticket  and  sell  themselves  to  the  Democrats,  put 
their  hands  in  their  pockets  and  change  tickets  before  getting  to  the  polls.  They  said 
it  was  understood  among  them  that  they  intended  for  everybody  to  see  that  this 
shouldn't  be,  by  keeping  their  hands  from  their  body  ;  they  shouldn't  have  the  privi- 
lege of  making  that  report.  They  would  keep  their  hands  from  their  body  and  it 
could  be  seen  by  everybody. 

Q.  After  what  election  was  it  that  Democrats  said  that  colored  people  sold  out  in 
that  wav  ? — A.  It  has  been  said  all  the  time,  but  more  so  since  the  August  election. 
(Record',  pages  247,  248.) 

Another  colored  man,  named  Blankenship,  swears  that  he  distributed 
tickets  to  GG  colored  men  ;  that  he  saw  them  openly  vote  the  ticket  for 
Garfield  and  Lowe  which  he  gave  them.  (Record,  pages  232,  233.) 
These  are  the  same  men  that  John  Wesley  swears  he  saw  vote  for  the 
contestant.     (Record,  page  244.) 

Felix  Forbes,  the  United  States  supervisor,  testified  as  follows: 


I 


GS  DIGEST  OF  ELECTION  CASES. 

Q.  Did  you  not  at  the  beginning  of  the  count  occupy  a  position  toward  the  iu- 
epector  who  was  calling  out  the  ballots  so  that  you  could  have  seen  the  names  upon 
the  ballots? — A.  Yes,  sir. 

Q.  Did  he  or  not  change  his  position  so  that  you  couldn't  see  the  names  ?— A.  Yes, 
sir;  he  changed  from  the  position  he  first  taken.  He  was  inclined  this  way;  he 
changed  it. 

Q.  Did  he  or  not  make  such  change  in  his  position  that  from  where  you  were  sitting 
you  couldn't  see  or  read  any  of  the  ballots? — A.  No,  sir;  I  couldn't  see  them. 

Q.  The  position  that  he  occupied  when  he  first  commenced  calling  the  ballots,  could, 
you  have  not,  by  endeavoring  to  do  so,  by  leaning  forward,  have  seen  them  ? — A.  Yes, 
sir;  I  could  liave  seen  them. 

Q.  How  did  it  happen  at  that  box  that  Wm.  M.  Lowe  got  18  votes  less  for  Congress 
than  the  Garfield  Presidential  electors  received  ? — A.  I  couldn't  say. 

Q.  Give  your  best  judgment  and  opinion  as  to  how  it  occurred. — A.  Well,  my  honest 
opinion  is  that  he  got  the  votes,  and  they  were  not  called  for  him  by  the  inspectors. 

Q.  Were  there  not  living  in  that  precinct  eighteen  voters  who  voted  at  box  number 
2  who  were  known  as  supporters  of  Garfield,  and  yet  desired  to  support  Joseph  Wheeler 
for  Congress  ? 

(Contestee  objects.) 

A.  I  don't  believe  there  was. 

Q.  Who  now  has  possession  or  who  took  possession  after  the  close  of  the  election  of 
the  ballots,  box,  and  poll-lists, at  that  box? — A.  Truitt.     (Record,  page  — .) 

In  addition  to  the  abov^e,  the  voters  themselves  were  called  to  testify, 
and  55  did  swear  that  they  voted  for  contestant.  The  result  of  this 
evidence  of  outright  and  open  fraud  in  the  count  must  be  to  reject  this 
box.  The  returns  being  successfully  impeached,  contestant  very  prop- 
erly relies  upon  the  direct  testimony  of  the  voters  themselves,  which 
clearly  entitles  him  to  55  votes  at  this  box. 

Lanier's  Precinct. 

At  this  precinct,  as  at  Meridianville,  all  the  State  officers,  sheriffs, 
and  clerks  were  ardent  partisans  of  the  contestee;  the  contestant  bad 
no  friends  among  them.  The  poll-list  shows  that  188  persons  voted  at 
this  box.  Yet,  the  inspectors,  in  defiance  of  law  and  mathematics, 
counted  for  contestee  142  votes  and  for  contestant  57  votes,  making 
199  votes,  or  11  more  ballots  in  the  box  thaji  names  on  the  poll-list. 
The  blundering  fraud  is  apparent  on  the  face  of  the  returns. 

The  inspectors  certify  that  on  counting  the  ballots  after  the  election 
there  were  11  more  ballots  in  the  box  than  were  names  on  the  poll-list, 
aud  that  thej'  deducted  2  Republican  ballots  and  9  Democratic  ballots, 
because  they  were  found  folded  together.  But  the  certificate  of  the 
probate  judge,  also  a  i^artisan  of  the  contestee,  shows  the  vote  cast  and 
counted  at  this  box  as  follows : 

"Ballots  counted  for  Wm.  M.  Lowe,  56;  ballots  counted  for  Joseph 
Wheeler,  142." 

If  this  be  the  truth,  there  must  have  been  not  only  199  ballots,  an 
excess  of  11,  but  there  must  have  been  210  ballots,  an  excess  of  22 
ballots.  The  fact,  however,  remains  that  only  188  names  are  upon  the 
poll-list,  and  that,  therefore,  only  that  number  of  .voters  could  have  le- 
gally voted  and  only  that  number  of  ballots  could  have  been  honestly 
counted.  The  inspectors,  nevertheless,  after  deducting  11  votes  in  excess 
of  the  poll,  return  57  for  the  contestant  and  142  for  the  contestee.  Who 
can  give  this  return  a  fair  and  honest  explanation  ? 

But  the  show  of  fraud  on  the  face  of  the  returns  is  made  apparent, 
if  not  conclusive,  by  the  evidence  that  the  box  was  stufted  in  the  inter- 
est of  the  contestee,  aud  the  integrity  of  the  election  at  that  poll  sub- 
stantially destroyed. 

John  Hertzler  testified : 

Question.  What  is  your  occupation  and  where  do  you  live? — Answer.  Well,  I  live 


LOWE    VS.    WHEELER.  69 

in  this  couuty  teu  miles  south  of  this  jilace — Lanier's  precinct,  in  Madison  County, 
Alabama. 

Q.  How  long  have  you  lived  there? — A.  Eleven  years,  sir. 

Q.  Where  did  you  come  from  when  you  moved  there  ? — A.  I  came  from  Clarke 
County,  Ohio — Springfield,  Ohio. 

Q.  is  it  not  true  that  you  have  purchased  and  now  own  forty  to  fifty  thousand  dol- 
lars' worth  of  real  estate  ? — A.  I  don't  know  what  it  might  be  worth,  but  I  own  sixteen 
hundred  acres  of  land  there. 

Q.  Were  you  one  of  the  inspectors  of  the  election  at  Lanier's  precinct,  November  2, 
ISf^O  ? — A.  Well,  I  was  appointed  to  be  there  as,  I  believe,  overseer — supervisor  of  elec- 
tion. 

Q.  What  time  did  you  get  to  Lanier's,  the  polling  place? — A.  I  went  there  before 
;x  o'clock  in  the  morning. 

Q  At  what  time  were  the  polls  opened  at  that  box  ? — A.  The  polls  were  opened  at 
:ibont  half  past  eleven,  or,  probably,  near  twelve  the  voting  commenced.  It  was 
eleven  before  there  was  any  voting  done ;  there  was  some  dispute  or  some  trouble  aa 
TO  the  registrar. 

Q.  Who  were  the  inspectors  who  held  the  election  at  that  box? — A.  The  inspectors 
were  William  F.  Baldridge,  William  M.  High,  and  Frank  Horton. 

Q.  William  F.  Baldridge  and  William  High  are  white  men  and  Frank  Horton  is  a 
(  olored  man  ? — A.  Yes,  sir. 

Q.  What  are  the  politics  of  William  F.  Baldridge  and  William  M.  High  and  Frank 
Horton  ;  were  they  ornot  Wheeler  men  andDemocrats  ? — A.  To  the  best  of  my  knowl- 
edge, tbey  are  ;  yes,  sir. 

Q.  Who  were  the  clerks  of  the  election  at  Lanier's  box? — A.  Burwell  C.  Lanier,  jr., 
and  James  McDonnell. 

Q.  What  are  the  politics  of  these  two  clerks  ? — A.  I  believe  they  were  W^heeler  men. 

Q.  Who  was  the  returning  officer  at  Lanier's  box? — A.  Burwell  C.  Lanier,  sr.,  the 
(lid  gentleman. 

Q.  He  was  a  Wheeler  man  and  a  Democrat,  was  he  not  ? — A.  Yes,  sir ;  to  the  best  of 
my  knowledge. 

Q.  Di«l  the  registrar  of  that  precinct  attend  the  polls  on  jthe  morning  of  the  elec- 
tion f — A.  Xo,  sir. 

Q.  Who  was  appointed  in  his  stead  ? — A.  Archie  McDonnell,  sr. 

Q.  Is  it  not  true  that  Archie  McDonnell,  sr.,  was  a  Democrat  and  Wheeler  man  T — 
A.  Yes,  sir. 

Q.  Is  it  not  true  that  Lanier  was  anew  precinct  or  voting  place  ? — A.  Yes,  sir. 

Q.  This  is  the  first  election  held  there,  is  it  not?— A.  Yes,  sir. 

Q.  You  say  that  the  registrar  of  that  precinct  didn't  attend  that  morning ;  what  is 
his  name  ? — A.  His  name  was  Blunt  Matkins. 

Q.  Is  it  not  true  that  he  is  known  as  a  Democrat  and  Wheeler  man  ? — A.  Yes,  sir. 

Q.  Did  he  come  during  the  day  ? — A.  He  came  about  two — two  o'clock  in  the  aft«r- 
noou.     He  was  sent  for. 

(Record,  page  174.) 

»  »  »  »  #  •    #  • 

Q.  How  did  yon  understand  he  was  engaged  during  the  morning  of  the  election  t — 
A.  Well,  I  understood  that  as  men  came  there  (hands  from  their  plantation)  every 
one  asked,  "  Did  you  see  anything  of  Blunt ;  is  he  coming  ?"  And  they  answered  in- 
variably, "  He  has  gone  hunting." 

(Contcstee  objects  to  eliciting  hearsay  from  the  witness,  and  to  answering  questions 
which  were  at  best  merely  a  point  of  hearsay.) 

Q.  When  the  voting  began  did  or  not  the  inspector,  William  F.  Baldridge,  chal-  , 
lenge  any  votes  ? — A.  Yes,  sir. 

Q.  How  many  did  he  challenge? — A.  Well,  I  judge  he  challenged  about  three  out 
of  five. 

Q.  Was  these  men  whom  he  challenged  known  as  Lowe  men  or  WTieeler  men  ? — 
A.  Well,  that  I  couldn't  just  say,  whether  they  were  or  not,  but  they  were  judged  to 
be  Lowe  men. 

Q.  You  say  you  think  he  challenged  about  three  out  of  five? — A.  Yes,  sir;  I  am 
satisfied  he  challenged  that  many  up  to  the  time  that  Matkins  came. 

Q.  When  he  would  challenge  a  voter  what  would  be  done  ? — A.  He  would  simply 
read  them  the  oath  that  was  there. 

Q.  Did  Mr.  Baldridge  do  the  reading  himself? — A.  Yes,  sir. 

Q.  Did  he  read  rapidly  or  very  slowly  ? — A.  fie  read  very  slowly,  sir;  very  tedi- 
ous. 

Q.  How  long  has  Mr.  William  F.  Baldridge  been  living  in  that  precinct? — A.  He 
has  lived  there  eleven  years — ^jnst  as  long  as  I  have. 

Q.  Isn't  it  tnie  that  he  is  well  acquainted  with  the  people  living  in  that  precinct? 
— A.  Yes,  sir ;  I  think  he  is  as  well  acquainted  as  any  man  there. 

Q.  Were  these  men  that  he  was  challenging  strangers  to  him  ? — A.  I  think  thej 
were  al!  well  known  to  him.  * 


70  DIGEST  OF  ELECTION  CASES. 

Q.  It  is  true,  is  it  not,  that  Mr.  Baldridge  is  a  planter  in  that  precinct,  and  M'ell 
acquainted  with  the  people  of  that  precinct  ? — A.  Yes,  sir ;  those  that  he  did  not 
challenge  were  such  that,  for  instance,  the  Laniers,  or  Mr.  James  McDonnell,  one  of 
the  clerks,  or  myself,  could  recommend. 

Q.  Were  you  present  at  the  time  the  ballots  were  received  ? — A.  Yes,  sir. 

Q.  Did  or  not  any  voter  come  up  to  the  polls  and  hand  to  the  inspector  six  or  seven 
ballots  twisted  or  folded  together  ? — A.  No,  sir  ;  I  paid  particular  attention  to  that. 

Q.  If  a  voter  had  brought  a  roll  of  ballots  as  I  have  described  and  handed  them  to 
the  inspector,  would  you  not  have  noticed  it? — A.  Yes,  sir. 

Q.  After  the  polls  were  closed  did  the  inspectors  b'egin  to  count  the  vote  immedi- 
ately?— A.  No,  sir. 

Q.  Did  the  inspectors  remain  at  the  house  where  the  election  was  held,  with  the 
ballot-box  ? — A.  No,  sir. 

Q.  What  did  they  do  and  where  did  they  go  ? — A.  Mr.  Baldridge  went  home,  Mr. 
High  and  Frank  Horton  staid  there.     I  took  charge  of  the  box. 

Q.  Where  was  the  election  held  ;  in  what  house  ? — A.  It  was  held  in  the  outhouse 
or  rear  end  of  the  smith-shop. 

Q.  After  the  polls  were  closed  was  the  ballot-box  kept  in  that  house  ? — A.  No,  sir. 
.     Q.  Where  was  it  carried? — A.  It  was  carried  to  Lanier's  store,  close  by. 

Q.  Who  carried  it  there  f — A.  William  M.  High. 

Q.  Did  you  and  the  other  inspectors  go  to  the  store  at  this  time? — A.  Yes,  sir. 

Q.  Did  the  inspectors  all  go  into  this  store? — A.  No,  sir. 

Q.  Who  went  into  the  store  ? — A.  William  M.  High  went  into  the  store.  ^ 

Q,  And  carried  the  box  in  ? — A.  Yes,  sir. 

Q.  Where,  then,  did  Mr.  Baldridge  go  ? — A,  He  went  home. 

Q.  Where  did  Horton  go  ? — A.  He  staid  there  at  the  store. 

Q.  Where  didyou  go  ? — A.  I  staid  there  at  the  store  for  a  while. 

Q  You  and  Horton,  then,  staid  there,  and  Baldridge  w^ent  home  ;  where  was  High 
at  this  time  ? — A.  He  came  out  of  the  store  again  and  was  with  us  for  a  while  ;  he  had 
gone  into  the  store  and  deposited  the  box,  and  came  back  again. 

Q.  Did  you  or  Mr.  High  go  to  supper  ? — A.  Yes ;  we  went  to  supper  after  that. 

Q.  Who  was  left  at  the  store  with  the  ballot-box  ? — A.  John  Lanier. 

Q.  Is  he  the  storekeeper  ? — A.  Yes,  sir. 

Q.  He  was  not  an  oflBcer  of  the  election,  was  he  ? — A.  He  was,  I  believe ;  I  think 
he  was  a  marshal  that  day,  appointed  by  the  Government. 

Q.  Is  it  not  true  that  this  John  F.  Lanier  was  a  pronounced  Democrat  and  a  Wheeler 
man  ? — A.  Well,  I  could  not  say  as  to  that ;  his  politics  were  rather  mixed ;  but  I 
rather  think  he  was  then,  at  this  last  election,  a  Democrat. 

Q.  How  long  did  you  and  Mr.  High  remain  away  from  the  store  and  at  supper? — 
A.  I  expect  it  was  nearly  two  hours  ;  were  away  a  long  time. 

Q.  Did  or  not  you  and  Mr.  High  go  to  the  store  after  supjjer  to  get  the  ballot-box  ? 
— A.  Yes,  sir. 

Q.  Who  went  with  you?— A.  Mr.  Burwell  Lanier,  Mr.  John  Lanier,  and  Mr.  Clint 
Lanier. 

Q.  Who  unlocked  the  store? — A.  John  Lanier. 

Q.  Did  you  get  the  box  ? — A.  Yes,  sir. 

Q.  Where  was  it  then  carried? — A.  It  was  then  carried  by  Mr.  High  to  Mr.  Bur- 
well  Lanier's  house,  in  his  parlor. 

Q.  And  then  in  his  parlor  did  you  jjroceed  to  count  the  vote  ? — A.  Yes,  sir. 

Q.  Was  William  F.  Baldridge  then  present  ? — A.  Yes,  sir, 

Q  Did  he  or  not  rejoin  you  at  the  store  when  vou  went  for  the  ballot-box  ? — A. 
He  did. 

Q.  What  kind  of  a  box  was  that  ballot-box? — A.  It  was  a  little  wooden  box,  a  lit- 
tle candy-box  formerly,  with  a  lid  on  top  that  could  open  and  shut  by  sliding  the  top 
in  grooves. 

Q.  Did  it  or  not  have  upon  it  any  lock? — A.  No,  sir;  it  didn't  have  any  lock. 

Q.  Was  there  or  not  a  hole  cut  in  it  for  the  purpose  of  putting  in  ballots?— A.  Yes, 
sir. 

Q.  When  the  ballot-box  was  left  at  the  store,  was  it  or  not  in  such  a  condition  that 
the  top  could  have  been  pulled  off? — A.  It  could  have  been  very  easily  pulled  open  ; 
that  is,  the  lid  could. 

Q.  When  you  proceeded  to  count  the  ballots  in  Mr.  Lanier's  parlor,  who  was  pres- 
ent?— A.  The  inspectors  of  the  election  and  the  clerks  were  present,  and  there  was 
also  present  another  colored  man,  Alexander  Kelley,  and  myself. 

Q.  Was  the  box  then  opened  in  the  presence  of  these  men? — A,  Yes,  sir, 

Q.  And  the  inspectors  proceed  to  count  the  vote  ? — A.  Yes,  sir, 

Q,  Were  or  not  any  ballots  found  in  that  box  rolled  or  twisted  together  ? — A.  Yes, 
sir;  there  were. 

Q.  What  kind  of  ballots  were  they— Wheeler  ballots  or  Lowe  ballots? — A.  Wheeler 
ballots. 


LOWE    VS.    WHEELER.  71 

Q.  How  many  were  rolled  iu  a  bunch  f — A.  Well,  to  my  certain  knowledge  there 
were  two  bunches,  they  then  were  that  were.  In  one  there  were  six ;  in  one  there 
were  seven ;  there  were  several  that  were  two  or  three ;  therer  were  several  other 
bunches  that  had  two  or  three  in  them. 

Q.  These  tickets  so  in  bunches  were  all  Wheeler  tickets,  were  they  not  ? — A.  Yea, 
sir  ;  two  bunches  were  Wheeler  tickets. 

Q.  You  mean  the  two  bunches,  one- containing  six  ballots  rolled  together  and  the 
other  containing  seven  ballots  rolled  together  f— A.  Were  all  Wheeler  ballots  ;  yes, 
sir. 

Q.  Who  took  the  ballots  out  of  the  box  and  called  them  out  to  the  clerks  ? — A.  Mr. 
Baldridge  took  out  the  greatest  part  of  them,  and  Mr.  High  took  out  some  of  them. 

Q.  Were  or  not  this  bunch  of  six  tickets  and  this  bunch  of  seven  tickets  all  counted 
for  Wheeler? — A.  They  were  all  counted. 

Q.  After  the  ballots  had  been  counted  how  did  the  number  of  ballots  compare  with 
the  number  of  names  on  the  poll -list  f — A.  There  were  eleven  more  ballots  then  there 
were  names. 

Q.  Who  cut  the  hole  in  this  ballot-box  through  which  the  ballots  were  put  into 
the  box  ? — A.  I  did. 

Q.  How  large  was  it? — A.  Half  an  inch  by  an  inch. 

Q.  Were  all  the  ballots. which  were  in  the  box  counted  ? — A.  Yes,  sir. 

Q.  And  then  it  was  ascertained,  was  it  not,  that  the  number  of  ballots  counted  ex- 
ceeded by  eleven  the  number  of  names  on  the  poll-list  ? — A.  Yes,  sir. 

Q.  Then  what  was  done  for  the  purpose  of  reducing  the  ballots  so  as  to  make  it 
correspond  with  the  number  of  names  on  the  poll-list? — A.  There  were  then  nine  of 
tho^e  ballots  were  then  counted  to  the  Republican  side  and  two  to  the  other. 

Q.  You  mean  that  they  deducted  nine  votes  from  the  Democratic  side  and  two 
votes  from  the  Republican  side  ? — A.  Yes,  sir. 

Q.  And  in  that  way  made  the  number  of  ballots  correspond  with  the  poll  lists  ? — A. 
Yes,  s»ir;  that  is  how  it  was  done. 

Q.  This  process  of  making  the  number  of  ballots  correspond  with  the  poll  list  took 
from  General  Wbeeler  and  the  Democratic  ticket  nine  ballots,  and  took  from  the  Re- 
publican ticket  and  Colonel  Lowe  two  ballots  ? — A.  Yes,  sir. 

Q.  Were  not  all  of  the  inspectors  present  in  the  counting  of  the  votes  Wheeler 
ineu  ? — A.  Yes,  sir. 

Q.  What  reason  did  they  give  for  taking  nine  ballots  from  Wheeler  and  two  from 
Lowe  for  the  purpose  of  equalizing  themf — ^A.  They  gave  as  a  reason  that  Wheeler's 
majority  was  so  much  the  greater. 

tj.  The  vote  had  been  counted  at  this  time  so  as  to  ascertain  that  his  majority  was 
greater? — A.  Yes,  sir. 

Q.  They  gave  no  reason  except  this? — A.  No,  sir. 

Q.  Who  proposed  that  the  vote  should  be  equalized  in  this  way? — A.  Well,  I 
couldn't  positively  sjjy  who  proposed  it.  They  asked  me  what  I  thought  about  it.  I 
told  them  that  I  thought  they  ought  to  be  pretty  lenient  to  Colonel  Lowe,  as  those 
two  wraps  that  were  in  there  were  Wheeler  votes. 

Q.  And  they  made  this  concessiou  without  complaint  ? — A.  Yes,  sir. 

<^.  Are  you  or  not  well  acquainted  with  the  voters  of  Lanier's  precinct? — ^A. 
Well,  I  am  not  very  well  acquainted  with  them.  As  a  general  thing  they  were 
nearly  all  colored  voters. 

Q.  It  is  true  that  you  were  well  acquainted,  is  it  not,  with  the  white  voters  of  that 
precinct,  and  with  many  of  the  colored  voters? — A.  Oh,  yes,  sir. 

Q.  From  your  knowledge  of  the  voters  of  that  precinct,  and  their  politics,  judging 
from  their  expressions  before  the  election,  and  from  all  means  of  knowledge  that  you 
have,  how  many  Wheeler  men  reside  in  and  voted  at  that  precinct  ? — A.  Well,  I  did 
think,  and  think  so  yet,  that  40  would  have  been  an  extremely  high  estimate  of  them. 

Q.  Did  or  not  the  inspectors,  in  your  hearing,  express  surprise  at  the  result  after 
the  vote  was  counted  ? — A.  Yes,  sir;  all  did. 

Q.  Did  or  not  the  electors  who  were  best  acquainted  in  the  precinct  express  great 
surprise  at  the  result  ? — A.  Yes,  sir. 

Q.  How  many  white  voters  are  at  the  precinct ! — A.  About  twenty. 

Q.  I  shall  now  read  to  you  the  poll-list  of  Lanier's  precinct  kept  by  the  clerks  of 
the  election,  on  November  2,  1880,  and  I'll  ask  you  to  keep  a  tally  of  the  names  whom 
you  may  kii.ow  to  be  those  of  whose  men  as  I  call  them,  and  then  answer  how  many 
white  men  are  recorded  upon  his  poll-list? — A.  Sixteen  is  what  I  recognize. 

Q.  Were  the  ballots  as  they  were  received  put  through  this  hole  the  top  of  the  box 
which  you  have  described? — A.  Yes,  sir. 

Q.  Referring  to  the  bunches  of  tickets,  6  in  one  bunch  and  7  in  another,  which  you 
have  described  as  have  been  found  in  the  box  when  it  was  open,  could  those  bunches 
or  rolls  of  ballots  been  passed  through  the  hole  in  the  box  which  you  have  described  ? 
— A.  No,  sir;  not  in  the  form  which  they  were  found  in  the  box. 


72  DIGEST    OF    ELECTION    CASES. 

Q.  According  to  your  best  judgment,  liow  many  Wheeler  ballots  were  cast  that 
way  ? 

(Contestee  objects  to  questions  asking  for  the  judgment  of  the  witness  as  to  how 
many  ballots  were  polled. ) 

A.  Well,  I  judged  then,  and  do  still  think,  that  there  was — that  fifty  would  have 
been  the  whole  amount. 

Q.  Isn't  your  best  judgment  that  fifty  would  have  been  a  liberal  estimate  of  the 
entire  strength  of  General  Wheeler  at  that  box? — A.  Yes,  sir. 

Q.  How  do  you  account  for  the  fact  that  when  the  ballots  were  counted  out  that  only 
fifty-six  ballots  for  Colonel  Lowe,  and  one  hundred  and  tifty  for  General  Wheeler  ? — 
A.  I  cannot  account  for  it  only  by  my  judgment.  '  :|13 

Q.  Give  me  your  best  judgment  as  to  how  it  occurred. — A.  My  judgment  is'that 
the  ballot-box  had  been  tampered  with  while  we  were  in  to  supper.  :-«  -«.^ 

Q.  Were  these  clerks,  Burwell  C.  Lanier,  jr.,  aneJamesMcDonnell,  competent  clerksf 
— A.  Yes,  sir;  I  think  they  were. 

Q.  Are  they  ntit  young  men  of  good  education  ? — A.  Yes,  sir. 

Q.  And  who  write  well  ? — A.  Yes,  sir. 

(Record,  page  176-77.) 

On  cross  examiuation  by  the  contestee  he  said : 

Q.  You  state,  I  believe,  that  the  ballot-box  was  carried  to  the  store  and  you  were 
along  with  it? — A.  Yes,  sir. 

Q.  It  Avas  then  carried  in  the  store,  and  before  you  left  it  was  locked  up  in  a  room 
in  the  store  ? — A.  It  was  carried  in  the  store,  but  where  it  was  put  in  the  store  I  didn't 
know  until  I  saw  it  t.aken  out.     It  was  carried  iii  the  store. 

Q.  When  you  saw  it  taken  out,  it  was  takeai  out  of  a  room  that  had  a  lock  on  it,  was 
it  not  ? — A.  Yes,  sir. 

Q.  It  was  taken  out  by  Mr.  High,  was  it  not  ? — A.  Yes,  sir ;  I  was  by  when  he  took 
it  out. 

Q.  Do  you  understand  Mr.  High  to  have  the  key  to  that  room  ? — A.  I  expect  that 
he  had  the  key  from  the  fact  that  he  went  there  by  the  door  and  unlocked  it.  Where 
he  got  the  key  I  don't  know.  I  know  he  unlocked  the  door  and  had  the  key  in  his 
hand,  and  just  reached  in  his  hand  in  the  dark  and  took  The  box  :  took  it  on  his  arm, 
and  we  went  tip  to  the  house.  When  I  say  "  in  the  dark  "  i  didn't  mean  that  he  was 
in  the  dark,  but  that  the  room  that  he  got  the  box  out  of  was  dark. 

Q.  This  John  F.  I^auier  that  was  in  the  store  was  a  marshal  at  the  election  that 
day,  was  he  not  ? — A.  Yes,  sir. 

Q.  This  man  John  F.  Lanier,  who  was  a  United  States  marshal,  was  the  only  man 
left  in  the  store,  was  he  not? — A.  Yes,  sir.  Well,  he  had  some  customers  in  the  store; 
the  store  belongs  to  him.  He  came  to  supper,  too,  but  he  didn't  go  with  us;  he  came 
up  when  we  were  nearly  through  supper. 

Q.  When  yoti  returned  from  supper  it  is  true,  is  it  not,  that  yon  went  down  witb 
Mr.  John  F.  Lanier,  and  yott  saw  him  open  the  store  doorf  Was  anybody  in  there 
when  you  opened  it? — A.  No,  sir. 

Q.  Then  you  saw  Mr.  High  go  to  the  store-room  and  unlock  that  door,  and  take 
out  the  ballot-box  ? — A.  Yes,  sir. 

Q.  And  then  you  went  with  Mr.  High  to  Burwell  Lanier's  house  ? — A.  Yes,  sir. 

Q.  And  there,  in  the  presence  of  the  inspectors,  and  in  the  presence  of  the  clerks  and 
a  colored  man  by  the  name  of  Kelly,  in  addition  to  the  man  Frank  Horton,  the  in- 
spector, the  ballots  were  counted  I — A.  Yes,  sir. 

Q.  Nothing  could  have  been  done  with  the  ballot-box  while  going  from  the  store 
to  the  house  f — A.  No.  sir ;  there  was  nothing  done  there. 

Q.  It  is'  true,  is  it  not,  that  the  only  place  that  any  tampering  could  have  been  done 
to  the  ballot-box  was  while  it  was  locked  up  at  the  store? — A.  Yes,  sir;  that  is  the 
only  time. 

Q.  What  makes  you  think  that  the  colored  man  Frank  Horton,  whom  you  thought 
was  a  Republican  up  to  Norember  the  2d,  is  now  a  Democrat  f — A.  Up  to  November 
2  I  didn't  know  Frank  Horton  at  all.  It  was  on  that  day  he  was  inspector,  and  why 
I  thought  that  day  he  was  a  Republican  was  why  I  knew  the  others  were  Democrats, 
and  I  thought  they  put  him  there  as  a  Republican  inspector. 

Q.  What  has  made  you  think  since  that  he  was  a  Democrat? — A.  Simply  that  I  have 
heard  of  him  being  accused  of  stuffing  votes  into  that  box.  When  I  said  it  would  be 
very  strange  that  Frank  Horton,  a  Republican  would  stutf  the  box  with  Democratic 
tickets,  they  said  that  he  was  a  red-hot  Democrat,  and  from  that  what  I  learned  that 
lie  "was  a  Democrat. 

Q.  It  is  true,  is  it  not,  that  Frank  Horton  cannot  read  or  write? — A.  I  do  not  think 
he  can.     I  did  not  see  him  take  any  part;  he  just  sat  there — did  not  do  anything. 


LOWE    VS.    WHEELER.  75 

William  H.  High,  one  of  the  inspectors  at  Lanier's,  and  witness  for 
contestee,  testified : 

Q.  When  you  put  the  ballot-box  in  the  side  room  at  the  store  and  went  to  the  house 
what  persons  did  you  leave  about  the  store  ? — A.  I  left  John  F.  Lanier  and  several 
negroes.  .John  F.  Lanier  came  on  to  supper  shortly  after  we  got  there,  and  was  ther& 
with  us.     (Record,  page  557.) 

Extract  from  deposition  of  Lowe  Davis : 

Q.  What  time  did  you  get  to  Lanier's  on  the  day  of  the  election? — A.  I  believe  it 
was  about  eight  or  half  past  eight  o'clock. 

Q.  Was  the  register  of  that  precinct,  Mr.  Madkins,  there? — A.  No,  sir;  he  was  not.. 

Q.  Did  you  aud  others  make  any  effort  to  get  the  polls  opened  f  If  so,  state  fully 
what  you  did  and  what  occurred  in  that  respect,  telling  who  assisted  you,  and  what 
assistance  they  rendered,  and  what  obstructions,  if  any,  were  offered  by  the  inspectors^ 
and  how  it  was  you  succeeded  in  getting  the  polls  opened. — A.  Upon  arriving  Aye 
found  out  that  Mr.  Madkin,  the  register  appointed,  was  not  present;  we  waited  for 
him  some  time,  aud  finally  concluded  that  he  whs  not  coming  at  all;  we  then  went 
to  where  the  inspectors  intended  to  hold  the  election  and  requested  them  to  appoint 
another  registrar.  Mr.  Baldridge,  one  of  the  inspectors,  declined  to  do  so,  stating  that 
he  had  no  authority.  Mr.  R.  H.  Lowe  then  procured  a  copy  from  Mr.  Clint.  Lanier  of 
the  Code  of  Alabama,  aud  read  the  law  in  regard  to  the  appointment  of  a  registrar  from 
that ;  he  ( Baldridge)  still  objected,  though  stating  that  he  was  a  States-rights  man,  and 
would  not  go  by  the  United  States  statutes.  The  construction  that  he  put  upon  the- 
code  was  not  the  one  that  he  put  fipou  it.  He  did  not  think  that  he  had  any  au- 
thority whatever  to  appoint  another  registrar  or  an  assistant  registrar.  Mr.  Burwell 
C.  Lanier,  sr.,then  insisted  to  quite  an  extent;  and,  finally,  after  Mr.  High  and  Hor- 
ton,  a  colored  inspector,  had  consented,  Mr.  Baldridge  appointed  Mr.  McDonnell,  an 
old  gentleman  about  seventy  years  of  age,  as  assistant  registrar. 

Q.  When  the  polls  were  finally  opened  after  the  registrar  was  appointed,  did  the 
inspectors,  or  any  one  of  them,  make  any  objection  to  Mr.  Archie  McDonnell,  sr.,  having 
assistance  in  writing  out  the  certificates  of  registration  ? — A.  Mr.  Baldridge  did. 

Q.  Did  he  or  not  claim  that  Mr.  McDonnell  should  write  them  all  out  himself? — A. 
He  did;  we  saw  that  it  was  impossible  for  Mr.  McDonnell  to  do  that;  at  least  we 
thought  so,  as  there  were  no  blanks  furnished  by  the  inspectors  or  in  possession  of  the 
registrar. 

Q.  And  did  some  of  you  insist  upon  helping  Mr.  McDonnell? — A.  Yes,  sir;  we  did^ 

(Record,  page  190.) 

Q.  Did  you  or  not  have  an  opportunity  to  observe  the  manner  of  the  distribution  of 
the  ballots  to  the  colored  voters  and  who  was  distributing  them  ? — A.  I  did. 

Q.  Who  did  you  see  distributing  ballots,  and  who  did  you  see,  if  any  oue,  preserving, 
a  tally  or  score  of  the  voters  who  received  the  ballot  and  went  forward  to  vote? — A. 
I  frequently  during  the  day  went  down  to  where  the  negroes  were  going  in  to  vote. 
I  saw  at  that  place  Pope  McDauiel,  I  think  his  name  is,  keeping  a  tally-sheet  of  the 
men  who  voted  for  Lowe,  aud  also  another  colored  man  distributing  tickets. 

Q.  Who  was  this  colored  man  distributing  tickets? — A.  I  have  forgotten  his  namep 
Wallace  something. 

Q.  Have  you  or  not  seen  this  other  man  who  was  distributing  tickets  here  to-day,, 
being  examined  as  a  witness? — A.  Yes,  sir. 

Q.  Wasn't  his  name  William  Wallace  ? — A.  I  think  it  was,  sir. 

Q.  Isn't  he  the  man  who  is  sometimes  called  Wallace  Toney  ? — A.  Yes,  sir. 

Q.  You  recognize  the  man  as  the  man  who  was  distributing  the  tickets? — A.  I  do.. 

Q.  Was  there  or  not  any  action  on  the  part  of  the  inspectors  as  the  voters  went  up 
to  deposit  their  ballots  that  indicated  a  disposition  to  delay  their  election  ? — A.  There- 
was. 

Q.  State  fully  what  occurred  in  that  connection. — A.  The  electors,  after  they  had 
received  their  certificates  of  registration,  would  go  to  the  polling  place,  aud  every  one 
that  voted  while  I  was  present,  and  I  saw  a  great  many  vote,  were  challenged,  to  the 
best  of  my  knowledge. 

Q.  How  near  were  yon  to  the  inspectors,  looking  on,  at  the  tim«  you  saw  these  men 
challenged? — A.  About  thirty  yards  ;  probably  not  that  far. 

Q.  What  could  you  see? — A.  I  could  see  the  elector  walk  to  the  box  or  where  they 
were  polling  the  votes  and  offer  his  ticket,  holding  it  in  his  hand  ;  some  would  remaia 
there  for  two  or  three  minutes  with  the  inspectors.  I  heard  them  swear  a  good  many 
of  them. 

Q.  There  seemed  to  be  some  delay  in  the  receiving  of  all  the  ballots  that  you  saw- 
received? — A.  Yes,  sir.  * 


74  •    •  ■        DIGEST  OF  ELECTION  CASES. 

Q.  Did  you  or  not  examine  this  tally-sheet  or  score  that  you  say  Pope  McDaniel  was 
keeping  of  the  ballots  that  Wallace  Toney  was  distributing  f — A.  I  did,  just  before  I 
left,  between  three  or  four  o'clock,  I  think. 

Q.  What  was  its  condition  as  to  the  number  of  votes  at  the  time  you  examined 
it  ? — A.  120  or  130  tallies  upon  the  sheet  or  a  piece  of  pasteboard  which  he  held  in  his 
liand. 

Q.  What  did  you  understand  each  one  of  these  marks  or  tallies  to  represent  T — A. 
A  vote  for  Wm.  M..  Lowe.  * 

Q.  What  time  did  you  say  you  left  Lanier's  for  Huntsville  ?— A.  Between  three  and 
four  o'clock. 

Q.  Alfred  MeColley  could  have  come  and  voted  after  you  left,  could  he  not  ? — A. 
Yes,  sir. 

Q.  Were  there  or  not  any  white  voters  at  Lanier's  precinct  known  to  be  Lowe 
men  ? — A.  Mr.  John  Allen  was  an  avowed  Lowe  man.  Since  the  election  I  have  seen 
Mr.  Bill  Allen,  who  also  told  me  that  he  voted  for  Lowe.  I  have  heard  that  there 
^wrere  others. 

Q.  Both  the  gentlemen  you  have  named  voted  at  that  precinct  ? — A.  Yes,  sir ;  at 
Xianier's  precinct. 

Q.  If  there  had  been  a  majority  of  the  colored  men  who  were  at  Lanier's  precinct 
who  were  for  General  WTieeler  on  the  day  of  the  election,  would  you  or  not  have  been 
:able  to  discover  the  fact  that  there  was  a  number  of  them  for  him  during  the  day  by 
your  mixing  with  them  and  your  conversation  with  them  ? — A.  I  think  I  would,  sir. 

Q.  What  did  you  discover  to  be  the  sentiment  of  that  body  of  colored  voters? — A. 
They  all  desired  to  vote  for  Garfield,  Arthur,  and  Lowe. 

Q.  Did  you  or  not  oflfer  to  distribute  Lowe  tickets  yourself? — A.  I  did,  sir. 

Q.  What  was  said  to  you  by  the  leading  colored  men  in  reference  to  your  offer  f — A. 
That  they  had  procured  Lowe  tickets  and  were  very  desirous  of  keeping  an  accurate 
-account  of  the  votes  polled  for  Lowe  ;  that  the  electors  present  had  confidence  in  them 
-and  they  would  prefer  to  distribute  them,  as  they  had  procured  the  Republican  ticket 
with  Lowe's  name  on  it — the  tickets  the  electors  desired  to  vote. 

Q.  Didn't  you  understand  in  that  conversation  that  arrangements  had  been  made 
ibr  William  Wallace,  sometimes  called  Wallace  Toney,  to  di8t<ribute  the  ballots,  and 
for  a  tally  to  be  kept  by  Pope  McDaniel  ? — A.  I  did,  sir. 

Q.  And  you  saw,  did  you  not,  that  plan  while  it  was  being  executed  f — A.  I  did. 
<Record,  pages  191,  192. ') 

Richard  H.  Lowe,  attorney-at-law,  who  accompanied  Lowe  Davis  to 
Lanier's,  corroborates  him  fully.  He  describes  specifically  the  efforts 
made  by  Lowe's  friends  to  get  the  polls  opened,  and  the  stubborn 
resistance  made  by  Wheeler's  supporters.  (Record,  page  157.)  Lowe's 
i'riends  expected  a  large  majority  at  that  box,  and  Wheeler's  friends 
thought  that  twenty  votes  would  be  as  many  as  he  would  get  there. 

(Record,  page  158.) 

Pope  McDaniel,  the  secretary  of  the  Garfield  Club,  aided  by  William 
Wallace,  distributed  the  tickets  and  saw  155  ballots  cast  for  Lowe. 
<Recortl,  pages  206-7.)  His  deposition  is  perfectly  clear  and  consistent. 
He  kej)t  a  tally-list  of  the  ballots  so  cast  for  Lowe.  (Record,  page  208.) 
He  is  corroborated  by  Lowe  Davis,  as  heretofore  shown,  and  by  William 
Wallace,  who  says  distinctly  that  155  men  received  the  Lowe  tickets 
and  walked  to  the  polling  place  and  deposited  them ;  that  each  voter 
■carried  the  ballot  so  that  witness  could  see  it.  (Record,  page  216.) 
This  x>recautiou  was  taken  on  account  of  the  frauds  at  the  Triaua  box 
in  August.     (Record,  page  216.) 

Lanier's  precinct  had  been  since  August  taken  from  the  Triana  pre- 
cinct. For  an  account  of  tlie  August  election  at  that  box -see  the 
<leposition  of  United  States  Marshal  Joseph  H.  Sloss.  (Record,  pages 
■91-2-3.) 

The  depositions  of  Pope  McDaniel  and  William  Wallace  should  be 
carefully  read  in  connection  with  the  investigation  of  Lanier's  box. 
The  former  is  in  record,  page  206  to  215  j  the  latter  will  be  found  on 
pages  215  to  231. 

Under  these  circumstances,  the  contestant  properly  and  legally  called 
the  voters  themselves  to  testify  as  to  how  they  had  voted,  one  hundred 
And  twenty-eight  of  whom  came  forward  and  swore  that  they  voted  for 


LOWE    VS.    WHEELER.  75 

coutestaut.     We  thiuk  that  contestant  should  have  the  benefit  of  these 
votes. 

CAVE  SPRING. 

The  witnesses  for  contestee  admit  that  contestant  is  entitled  to  at 
least  ten  more  votes  at  this  box  than  are  given  him  by  the  inspector's 
returns.     (See  record  pages  9fi4,  986,  467.) 

Carver  C.  Hipp,  on  an  examination  as  contestee's  witness,  testified : 

Q.  State  whether  you  were  present  at  the  polls  and  voted  at  the  Cave  Spring's  box 
at  the  Presidential  and  Congressional  Election  on  the  2d  day  of  November,  188U? — A. 
I  was  present  at  the  polls  and  voted  at  said  election. 

Q.  State  whether  or  not  there  was  a  large  colored  vote  at  the  Cave  Spring's  box  on 
said  day,  and  how  many  negroes  voted  the  Democratic  ticket  f — A.  There  was  a  very 
large  colored  vote  at  Cave  Spring's  box,  and  there  were  only  three  negroes  who  voted 
the  Democratic  ticket  at  said  box. 

Q.  For  whom  did  tlie  colored  people  vote  for  member  of  Congress  on  that  day? — A. 
They  voted  solidly  for  Wm.  M.  Lowe,  with  the  exception  of  three.     (Record,  964.) 

Edwin  G.  Hendrix,  a  witness  for  contestee,  on  his  exainination  by 
contestee's  attorney,  with  the  poll-list  of  this  box  in  his  hands,  gave  the 
names  of  sixty-four  colored  men  who  voted  at  this  box  November  2, 
1880.     (Record,  986.) 

Mr.  Hipp  says  that  all  of  these  colored  men,  except  three,  voted  for 
Lowe.  Deducting  three  from  sixty-f(»ur  would  leave  sixty-one  colored 
men  who  voted  for  Lowe. 

The  inspectors,  all  of  whom  were  Wheeler's  sui>i)orters,  by  their  re- 
turns give  Lowe  ou\y  fifty -one  votes.     (Record,  pages  467  and  986.) 

Conceding  that  Lowe  did  not  receive  the  votes  of  a  single  white  man, 
if  these  witnesses  tell  the  truth,  and  we  do  not  on  this  jjoiut  question 
their  veracity,  Lowe  is  entitled  to  ten  more  votes  than  the  inspectors 
return  for  him. 

The  dei)osition  of  Mr.  Hipp  is  a  fair  sample  of  the  evidence  taken, 
ex  parte,  ioT  the  contestee.  » 

We  find,  therefore,  that  the  following  additional  votes  should  be 
counted  for  contestant : 

Votes. 

Lanier's  (Record  r2(>:M340).. 128 

Meridiauville,  No.  2  (Record,  2^,241,  to  259) .' 55 

Cave  Spring  (Record,  964, 986, 467) 10 

193 

In  addition  to  the  601  rejected  votes.* 

THE  CASE  OF  CONTESTEE.' 

In  reply  to  the  foregoing  statement  of  law  and  fact,  the  contestee 
puts  in  a  plea  in  the  nature  of  confession  and  avoidance.  He  seeks  to 
show  that  many  electors  who  voted  for  contestant  did  not  have  the 
legal  qualifications;  that  they  were  minors,  or  convicts,  or  non-residents, 
or  were  not  registered ;  and  that  "  many  hundreds  of  colored  voters  who 
desired  to  \'ote  for  contestee  were  prevented  from  so  doing  by  IVar  of 
ostracism  and  apprehension  of  harm  to  their  persons  and  property,  and 
even  the  destruction  of  their  houses  and  property  by  fire." 

In  support  of  these  allegations,  the  contestee  has  adduced  a  <rreat 
mass  of  testimony,  and  presented  briefs  of  extraordinary  length,  but 
has  in  our  oi)inion  failed  to  sustain  his  case.  This  testimony  is  almost 
altogether  irrelevant,  and  much  of  it  frivolous  and  generally  secondary, 
hearsay,  and  illegal.     His  proofs  fail  to  sustain  his  aillegations. 


76  DIGEST  OF  ELECTION  CASES. 

Ill  regard  to  minors  and  non-residents,  the  mere  statement  of  a  wit- 
ness that  an  elector  is  one  of  this  class  seems  to  be  the  sole  reliance  of 
the  contestee.  This  is  not  suflacieut.  The  witness  must  give  facts  to 
justify  his  opinion. 

In  regard  to  convicts,  the  record  of  conviction  is  the  best  evidence^ 
and  the  only  evidence  to  be  accepted  by  the  House,  unless  the  loss  or 
destruction  of  that  record  is  shown.  In  no  instance  has  the  contestee 
produced  the  record  or  sought  to  account  for  its  absence.  We  think  it 
is  clear,  also,  that  the  contestee  has  not  made  such  a  showing  in  regard 
to  the  Courtland  boxes  as  would  autliorize  us  in  rejecting  the  same 
under  the  authorities.  "  It  must  appear  that  the  conduct  of  the  election 
officers  has  been  such  as  to  destroy  the  integrity  of  their  returns,"  »&c. 
(McCrary,  page  229),  and  we  are  not  able  to  so  find  in  this  instance 
upon  the  proofs. 

REGISTRATION. 

In  regard  to  the  registration  of  voters,'  the  facts  as  shown  by  the  tes- 
timony do  not  sustain  the  claims  made  by  the  contestee.  His  testimony 
does  liot  establish  what  he  alleges  it  does.  It  is  largely  secondary 
and  of  a  hearsay  character  at  the  best.  The  fact  is  that  in  manj-  in- 
stances where  he  claims  registration  was  not  made,  it  was  made,  and 
in  few  instances,  if  any,  does  he  establish  the  identity  of  the  voter 
wherein  he  claims  non-registration. 

But  whatever  may  be  the  facts  upon  this  question  of  registration,  we 
are  clearly  of  the  opinion  that  the  constitution  of  Alabama  does  not 
make  registration  an  absolute  condition  or  prerequisite  of  voting,  nor 
do  the  statutes  of  the  State. 

The  provisions  of  the  Alabama  constitution  (art.  8,  sec.  5)  in  regard 
to  registration  is  subject  to  two  constructions :  one  making  registra- 
tion constitutionally  essential  to  voting,  and  the  other  making  regis- 
tration essential  only  "  wheti  it  is  so  provided  "  by  law.  The  latter  con- 
struction is  the  one  taken  by  contestant.  It  is  the  plainest  and  most 
satisfactory  construction  that  can  be  derived  after  giving  full  force  to 
all  the  words  in  the  section.  On  the  contrary,  the  construction  given 
by  the  contestee  would  eliminate  the  words  "  when  it  is  so  provided,^^ 
and  make  ^he  section  read  as  follows : 

The  general  assembly  may,  when  necessary,  provide  by  law  for  the  registration  of 
electors  throughout  the  State  or  in  any  incorporated  city  or  town  thereof  and  no  one 
shall  vote  at  any  election  unless  he  shall  have  registered  as  required  by  law. 

This  reading  of  the  section,  with  the  words  "  ichen  it  is  so  provided^ 
eliminated,  is  the  construction  given  by  the  contestee  to  the  entire  sec- 
tion. But  these  words  cannot  be  properly  eliminated.  They  stand 
out  in  the  section  to  qualify  and  limit  its  meaning.  They  must  be 
given  due  consideration.  They  declare,  in  effect,  not  that  registration 
shall  be  a  prerequisite  for  voting,  but  that  ichen  the  general  assembly 
shall  so  provide,  no  person  shall  vote  unless  registered :  meaning  that 
the  legislature  may  make  registration  a  prerequisite  for  voting,  and 
that  when  "it  is  so  provided''''  no  person  shall  vote  without  being  thus 
registered. 

But  the  legislature  has  not  seen  fit  to  make  such  provision.  Eegis- 
tration  is  not  a  i)rerequisite.  It  is  not  compulsory.  It  is  not  even  put 
down  as  one  of  the  qualifications  of  an  elector. 

The  registration  law  of  Alabama  contains  the  following  provision : 

$233.  Registration  on  election  day,  and  certificate. — The  assistant  registrars  shall  be 
present  at  the  voting  precinct,  or  ward,  for  which  they  are  respectively  appointed,  ou 


LOWE    VS.    WHEELER.  77 

the  day  of  election,  to  register  such  electors  as  may  have  failed  to  register  on  any  pre- 
vious day  in  their  precincts  or  wards,  which  registration  must  be  done,  in  every  respect, 
according  to  the  form  prescribed;  and  the  assistant  registrar  shall  furnish  to  each 
(lector  who  may  register  on  the  day  of  election  a  certificate  of  registration,  which  shall 
lie  in  the  following  form  : 

I, ,  assistant  registrar,  do  hereby  certify  that has  this 

•day  registered  before  me  as  an  elector. 

(Signed)  • , 

Iiegislrar. 

Which  certificate,  signed  by  the  registrar,  shall  be  sufficient  evidence  that  such  elector 
is  registered  ;  and  in  case  such  assistant  registrar,  for  any  cause,  is  unable  to  attend,  or 
there  be  a  vacancy  in  the  office  of  assistant  registrar  for  such  precinct  or  ward ,  the  county 
registrar  shall  appoint  some  competent  person  as  assistant  registrar  for  that  day ;  and 
if  no  appointment  be  so  made  by  10  o'clock  of  that  day,  then  the  inspectors  of  election 
may  appoint  an  assistant  registrar,  who  may  qualify  and  act  as  such  for  that  day ; 
but  this  section  shall  not  apply  to  incorporated  towns  or  cities  having  a  population 
•of  more  than  five  thousand  inhabitants,  except  as  is  hereinafter  provided  by  this 
■chapter.  , 

Every  voter  that  complied  with  this  couditiou  complied  with  the  re- 
•quirements  of  the  registry  law  of  Alabama,  and  was  as  much  entitled 
to  vote  as  though  he  had  beeu  registered  days  before  the  election.  In  the 
face  and  eyes  of  a  such  provision,  and  in  the  absence  of  such  proof  as 
would  show  that  the  officers  who  had  registration  in  their  charge  had 
deliberately  violated  their  oaths,  how  are  we  to  assume  that  this  provis- 
ion of  law  was  not  complied  with  in  all  cases  of  voters  not  embraced 
in  the  general  registry  ?  As  to  the  presumption  that  the  officers  of  the 
law  charged  with  a  duty  performed  it,  we  cite  McCrary  on  Elections,  j). 
231 ;  to  the  election  case  of  Finley  vs.  Bisbee,  vol.  1,  third  session,  Forty- 

k fifth  Congress,  House  Reports. 
We  conclude,  therefore,  and  we  think  rightfully,  that  the  votes  which 
the  contestee  claims  should  be  thrown  out  on  account  of  alleged  non- 
registration cannot  be  deducted  from  contestant's  votes  ;  and,  besides, 
that  they  could  not  be  taken  2)t'o  rata  from  the  whole  vote  cast,  because 
Sfcher^  is  no  evidence  which  establishes  definitely  and  indentically  for 
!whom  they  voted.  It  was  held  in  Ourtin  vs.  Yocum,  2d  vol.  House  Re- 
ports of  Forty-sixth  Congress,  where  an  elector  votes  without  challenge, 
his  vote  cainiot  afterwards  be  rejected  because  his  name  may  not  be 
found  on  the  registration  list,  but  that  it  will  be  presumed  the  officers 
of  the  election  did  their  duty  till  the  contrary  is  proA^n. 

We  therefore  find  and  report  that  the  contestant  was  fairly  elected, 
and  that  he  was  wrongfully  counted  out.  We  slibmit  the  following 
table  of  results : 

Lowe  has  12,765  votes  returned  for  him,  601  rejected  ballots  proved 
for  him,  193  additional  ballots  proved  for  him  ;  total,  13,559 ;  103  votes 
which  must  be  deducted  on  account  of  Meridian ville  and  Lanier's  polls 
being  rejected  for  fraud. 

Lowe's  actual  vote 13,456 

Wheeler's  vote  as  returned 12, 808 

Deduct  Meridianville 57 

Deduct  Lanier's 142 

199 

Wheeler's  actual  vote 12,609 

Lowe's  legal  vote 13,456 

Wheeler's  legal  vote 12, 609 

Lowe's  majority 847 


78 


DIGEST    OF    ELECTION   CASES. 


We  therefore  recommend  the  a(l()i)tiou  of  tbe  following  resolutions: 
Resolved,  That  Joseph  Wheeler  is  not  entitled  to  a  seat  in  this  House 

as  a  Eepresentative  in  the  Forty-seventh  Congress  from  the  eighth 

Congressional  district  of  Alabama. 

Resolved,  That  Willaim  M.  Lowe  is  entitled  to  a  seat  in  this  House 

as  a  Eepresentative  in  the  Forty-seventh  Congress  from  the  eighth 

Congressional  district  of  Alabama. 


VIEWS    OF   MB.   BANNEY. 

The  records  and  briefs  in  this  case  are  very  voluminous.  Much  of  the 
former  is  composed  of  matter  which  is  personal  in  its  nature  and  wholly 
immaterial.  It  has  served  to  impose  unnecessary  labors  upon  the  com- 
mittee, and  to  prevent  an  earlier  report  to  the  House.  The  contest 
rea]ly  presents  but  two  substantial  issues. 

The  first  issue  related  to  about  525  ballots  cast  for  contestant  and 
rejected  by  the  inspectors,  and  which  he  now  contends  should  be  counted 
for  him.  The  second  relates  to  votes  cast  by  alleged  non-registered 
electors. 

The  oflBcial  vote,  as  returned  to  the  secretary  of  state,  and  upon  which 
the  certificate  was  issued  to  contestee,  was  as  follows : 


Counties. 


Wm.  M.  Lowe. 


Colbert.... 
Franklin  .. 
Jackson  . . . 
Lauderdale 
Lawrence  . 
Limestone  . 
Madison  ... 
Morgan 

Total 


1,237 

1,237 

611 

400 

1,948 

1,680 

1,709 

1,322 

1,517 

1,993 

1,569 

1,704 

2,825 

3,501 

1,392 

928 

12,  765 


Wheeler's  majority,  43  (Record,  page  470). 

The  official  vote  at  each  precinct  in  each  county  is  shown  by  the 
proper  certificates  found  in  the  Record,  pages  464-69. 

It  is  proved  clearly  that  521  more  ballots  were  cast  for  contestant 
and  rejected  by  the  inspectors  in  fifteen  precincts,  and  that  8  more 
were  cast  for  contestee  and  rejected  in  other  precincts  for  the  same 
reason. 

Had  these  been  counted  and  returned  contestant  would  have  had  a 
majority  of  470. 

Those  for  contestant  rejected  were  as  follows,  viz: 

Ballote. 
Precincts : 

Huntsville 61 

Madison 3:J 

Oweus  Cross  Eoads 31 

Poplar  Ridge ., 41 

Falkville 97 

Decatnr 3 

Danville '. 42 

Elkmont 56 

Big  Creek 7 

Russellville 51 

Chickasaw - 8 


LOWE   VS.    WHEELER. 


7» 


Courtland 6S 

Green  Hill 22^ 

Kash ^ 

Meridianville 2. 


Those  for  contestee  rejected  were  as  follows,  viz : 


521 


Ballots. 


Precincts : 

At  Huntsville ^ 

At  Madison 1 

AtFalkville - 1 

At  Courtland - ^ 

At  MooresviUe 1 


S 


The  rejected  ballots  read  as  follows ; 


For  Electors  for  President  and  Vice- 
President  : 

state  at  large. 

W.  L.  BRAGG. 
E.  A.  O'NEAL. 

DISTRICT  ELECTORS. 

let  District— D.  P.  BESTOR. 
2d  District^JOHN  A.  PADGETT. 
3d   District— J.  F.  WADDELL. 
4th  Distrlct^JOHN  ENOCHS. 
5th  District— THOS.  W.  SADLER. 
6th  District— J.  G.  HARRIS. 
7th  District— F.  W.  BOWDON. 
8th  District— H.  C.  JONES. 

FOR  CONGRESS — EIGHTH  DISTRICT. 
WILLIAM  M.  LOWE. 


For  Electors  for  President  ana  Vice- 
President  : 

state  at  large. 

JAMES  M.  PICKENS. 
OLIVER  S.  BEERS. 

DISTRICT  ELECTORS. 

1th  District— C.  C.  McCALL. 

2d   District— J.  B.  TOWNSEND. 

3d   District— A.  B.  GRIFFIN. 

4th  District— HILLIARD  M.  JUDGE. 

5th  District— THEODORE  NL"NN. 

6th  District— J.  B.  SHIELDS.       , 

7th  District— H.  R.  McCOY. 

8th  District— JAMES  H.  COWAN. 

FOR  CONGRESS — EIGHTH  DISTRICT. 

WILLUM  M.  LOWE. 


There  was  no  objection  as  to  size  or  form  or  kind  of  paper  used. 

The  ballot  on  the  left  hand  is  what  is  called  the  Hancock  and  Lowe 
ballot,  and  the  one  on  the  right  is  the  one  called  the  Weaver  and  Lowe 
ballot. 

The  ballots  were  rejected  by  the  inspectors  because  they  had  on  them 
the  numerals  1,  2,  3,  &c.,  as  would  seem  from  the  evidence,  which  is  re- 
ferred to  for  the  convenience  of  those  who  may  desire  to  read  it. 

At  Huntsville  the  inspectors  rejected  sixty-one  of  these  ballots 
(deposition  of  Thomas  W.  White,  Kecord,  pages  37,  41 ;  W.  L.  Good- 
win, pages  42,  46 ;  Nicholas  Davis,  47,  48,  52,  54).  At  Madison  they 
rejected  thirty-three  (deposition  of  T.  B.  Hopkins,  Record,  page  130; 
Lockhart  Bibb,  pages  137,  139).  At  Owen's  Cross  Eoads  they  rejected 
thirty-one  (deposition  of  G.  W.  Maples,  Eecord,  page  140  ;  W.  L.  Chris- 
tian, 143;  K.  J.  Wright,  148).  At  Poplar  Eidge  they  rejected  forty- 
one  (deposition  of  E.  C.  Lamb,  Record,  page  150 ;  Nathan  Whittaker, 
153).    At  Falkville  they  rejected  ninety-seven   (deposition  of  W.  G. 


^0  •  DIGEST    OF    ELECTION    CASES. 

Smith  ;  Eecord,  page  370 ;  Alfred  Gaudy,  373,  375).  They  rejected  at 
Decatur  two  (deposition  of  H.  A.  Skeggs,  Eecord,  page  376).  They 
rejected  at  Danville  forty-two  (deposition  of  J.  Y.  Fergersou,  Eecord, 
page  382).  At  Elkmont  they  rejected  fifty-six  (de])osition  W.  A.  Pink- 
erton,  Eecord,  page  339,  341  ;  A.  G.  Smith,  343).  At  Big  Creek  they 
rejected  seven  (deposition  of  A.  C.  Witty,  Eecord,  j)age  346,  348;  Will- 
iam McCuUy,  349,  351).  At  Eussellville  they  rejected  fiftv-one  (deposi- 
tion of  John  E.  Seal,  Eecord,  394,  396 ;  D.  N.  Fike,  397).  At  Chickasaw 
they  rejected  eight  (deposition  of  T.  C.  Walker,  Eecord,  page  404).  At 
Courtland  they  rejected  sixty-five  (deposition  of  W.  J.  Gibson,  Eecord, 
page  496 ;  W.  W.  Simmons,  496). 

As  to  Green  Hill,  see  record,  p.  1388;  Kash,  p.  309;  Meridiauville, 
pp.  294,  295. 

The  following-named  documents  inclosed  together  in  the  same  envel- 
ope were  issued  and  sent  to  trusted  friends  by  the  Democratic  execu- 
tive committee;  and  the  one  not  signed — called  the  "yellow  circular" — 
"was  given  to  the  inspectors  just  at  the  close  of  the  polls,  and  seems  to 
have  been  heeded  and  acted  upon  by  them  inmost  of  the  precincts  named 
above. 

[Yellow  circular.] 

Dear  Sir:  As  soon  as  the  polls  are  closed  inform  the  inspectors  of  the  election  that 
the  Lowe  tickets  with  Hancock  electors  on  them  are  illegal.  They  contain  the  fig- 
ures Ist,  2d,  &c.,  designating  the  district.  These  are  marks  or  figures  which  are  pro- 
hibited by  the  election  laws  ;  see  acts  1878-'79,  page  72 ;  and  all  such  tickets  should 
be  rejected  when  the  votes  are  counted,  after  the  polls  are  closed. 

(Indorsed  :)  To  be  shown  only  to  very  discreet  friends. 

The  kind  of  persons  to  whom  it  was  intrusted  for  such  use  is  indi- 
cated by  the  paper  with  which  it  was  inclosed,  which  is  as  follows,  so 
far  as  now  material. 

IMPORTANT. 

You  are  specially  designated  as  a  person  whose  influence  and  ability  can  accomplish 
;much  in  the  election. 

You  are  earnestly  requested  to  be  at  the  polls  before  the  voting  commences,  and  if 
any  inspectors  or  managei-s  are  absent  see  that  a  good  Democrat  takes  his  place-.  This 
is  very  important. 

»  »  »  •  #  ■»  * 

By  order  of  the  Congressional  Comt. 

A.  J.  SYKES, 

Chairman. 

In  some  cases  telegrams  were  sent  by  the  same  committee  to  the  in- 
spectors to  the  same  effect  of  the  yellow  circular.     (Eecord,  p.  129.) 

In  other  cases  lawyers  called  in  behalf  of  the  contestee,  expounded 
the  law,  and  induced  the  inspectors  to  reject  the  ballots  after  they  had 
been  cast  and  received. 

In  one  instance  the  ballots  had  already  been  counted,  and  they  were 
recounted  and  rejected  by  reason  of  the  personal  influence  of  a  lawyer 
who  called  for  that  purpose  and  advised  this  course. 

It  appears  that  in  other  counties  and  precincts  where  such  influences 
•were  not  brought  to  bear,  the  inspectors  counted  ballots  in  the  same 
form,  and  which  were  subject  to  the  same  objection,  to  the  number  of 
about  3,000,  as  alleged  and  proved  by  contestee.  He  contends  now 
that  they  were  all  illegal  and  ought  not  to  be  counted.    Contestant 


LOWE    VS.    WHEELER.  81 

contends  that  the  influences  brought  to  bear  to  induce  the  rejection  of 
the  ballots  were  illegal  and  fraudulent,  and  were  exerted  in  the  execu- 
tion of  a  conspiracy;  or,  if  not,  that  it  was  an  unwarrantable  interfer- 
•ence  with  the  judgment  and  action  of  the  inspectors.  This  may  be  so ; 
but  if  the  ballots  were  illegal  and  such  as  should  have  been  rejected, 
this  fact  is,  perhaps,  immaterial. 

The  fact  that  sucb  ballots  were  received  and  counted  when  there  was 
no  such  interference  is  quite  significant  as  indicative  of  how  they  were 
regarded  in  other  i^recincts. 

WERE  THE  BALLOTS  ILLEGAL? 

It  is  claimed  that  the  rejected  ballots  were  in  violation  of  the  follow- 
ing statute  of  Alabama,  as  cited  and  had  printed  by  contestee  at  the 
argument : 

AN  ACT  to  amend  section  274  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  by  the  general  assembly  of  Alabama,  That  section  274  of  the 
code  of  Alabama  be  ameDded  so  aa  to  read  as  follows: 

The  ballot  must  be  a  plain  piece  of  white  paper,  without  any  figures,  marks,  rul- 
iugs,  cliaracters,  or  embellishmeuts  thereon,  not  less  than  two  nor  more  than  two  and 
one-half  inches  wide,  and  not  less  than  five  nor  more  than  seven  inches  long,  on  which 
must  be  written  or  printed,  or  partly  written  and  partly  printed,  only  the  names  of 
the  PERSONS  for  whom  the  elector  intends  to  vote,  and  must  designate  the  office  for 
which  each  person  so  named  is  intended  by  him  to  be  chosen ;  and  any  ballot  other- 
wise than  described  is  illegal,  and  must  be  rejected.     Approved  February  12,  1879. 

The  legislature  of  Alabama  had  prescribed  the  mode  of  choosing 
Presidential  electors  as  follows  : 

On  the  day  prescribed  by  this  code  there  are  to  be  elected  by  general  ticket  a  number 
of  electors,  for  President  and  Vice-President  of  the  United  States,  equal  to  the  number 
of  Senators  and  Representatives  in  Congress  to  which  this  State  is  entitled  at  the  time 
of  such  election. 

The  following  statutes  of  Alabama  may  be  material : 

AN  ACT  to  amend  section  276  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  by  the  general  assembly  of  Alabama,  That  section  276  of  the 
code  of  Alabama  be  amended  to  read  as  follows:  One  of  the  inspectors  must  receive 
the  ballot  folded  from  the  elector,  and  the  same  passed  to  eacji  of  the  other  inspectors, 
and  the  ballot  must  then,  without  being  opened  or  examined,  be  deposited  in  the 
proper  ballot-box. 

Approved  February  8,  1879. 

AN  ACT  to  amend  section  286  of  the  code  of  Alabama. 

Section  1.  Be  it  enacted  by  the  general  assembly  of  Alabama,  That  section  486  of  the 
code  Of  Alabama  be  amended  so  as  to  read  as  follows,  viz: 

§  28G  (264).  Manlier  of  counting  out  votes. — In  counting  out,  the  returning  officer,  or  one 
of  the  inspectors,  must  take  the  ballots,  one  by  one,  from  the  box  in  which  they  have 
been  deposited,  at  the  same  time  reading  aloud  the  names  written  or  printed  thereon, 
and  the  office  for  which  such  persons  are  voted  for;  they  must  separately  keep  a  calcu- 
lation of  the  number  of  votes  each  person  receives,  and  for  what  office  he  receives 
them ;  and  if  two  or  more  ballots  are  found  rolled  up  or  folded  together,  so  as  to  in- 
duce the  belief  that  the  same  was  done  with  a  fraudulent  intent,  they  must  be  re- 
jected, or  if  any  ballot  contain  the  names  of  more  than  the  voter  had  a  right  to  vote 
for,  the  first  of  such  names  on  such  ticket,  to  the  number  of  persons  the  voter  was 
entitled  to  vote  for,  only  must  be  counted. 

Approved  February  13,  1879. 

(Acts  Ala.,  1878-'9,  p.  73.) 

The  gronnd  on  which  the  inspectors  rejected  the  ballots  and  were 
H.  Mis.  35 6 


82  DIGEST   OF   ELECTION    CASES. 

advised  to  do  so  at  the  time  was  virtually  abandoned  at  the  argument^ 
and  the  latter  part  of  the  statute  was  then  relied  upon  as  the  only  valid 
ground  for  the  rejection. 

It  is  claimed  that  the  ballots  had  on  them  more  than  the  names  of 
the  persons  for  whom  the  elector  intended  to  vote  and  what  was  an  im- 
proper designation  of  the  office  for  which  each  person  named  was  in- 
tended to  be  chosen,  and  operated  as  a  distinguishing  mark. 

The  committee  are  of  the  opinion  that  the  ballots  were  wrongfully 
rejected,  and  should  be  counted  for  contestant. 

The  paper  used  for  the  ballot  teas  "without  any  figures,  marks,  rul- 
ings, characters,  or  embellishments,"  and  then  there  was  attempted,  iu 
the  opinion  of  the  committee,  to  be  printed  on  it  oilly  the  names  of  the 
candidates  and  what  was  designed  as  only  a  designation  of  the  office* 
for  which  each  person  was  intended  to  be  chosen. 

It  is  objected  that  the  ballot  does  not  correctly  designate  the  office^ 
under  the  Alabama  statute  cited,  as  the  electors  were  to  be  elected  on 
a  general  ticket;  and  it  is  contended  that  what  was  written  in  desig- 
nating the  candidates  as  electors,  "State  at  large,"  "district  electors,'' 
"1st  district,"  "2d  district,"  «&c.,  did  not  designate  any  office  known  to 
the  law.  There  is  nothing  in  the  law  to  prevent  the  selection  of  the 
electors,  two  at  large  and  one  of  and  from  each  Congressional  district 
in  the  State.  Such  was  done;  in  fact,  each  party  did  it.  It  is  the 
usual  and  customary  way  in  all  the  States.  The  statutes  require  it  in 
many  State,  to  be  so  done.  It  will  hardly  be  claimed  that  the  office  of 
electors  was  so  designated  as  to  make  it  uncertain  what  office  was 
meant,  and  that  this  vitiated  the  ballot  so  it  could  not  be  counted  for 
the  electors  on  that  account  alone.  If  it  did,  it  may  not  affect  the  can- 
didate for  Congress,  as  he  was  properly  named  and  his  office  well  des- 
ignated. 

It  is  sufficient  that  the  'words  and  figures  were  designed  only  to  de- 
scribe the  candidates  and  to  designate  the  offices,  so  as  to  express  the 
intention  of  the  voter.  It  cannot  be  justly  charged  that  the  desig- 
nation was  intended  or  improperly  calculated  to  operate  as  a  distin- 
guishing device  or  mark.  It  is  at  best,  as  claimed,  only  what  may  be 
called  an  erroneous  designation ;  but,  if  so,  it  cannot  be  said  that  an 
error  of  that  kind  was  obnoxious  to  the  statute. 

The  statute  allows  of  all  that  may  properly  be  used  to  express  the 
intention  of  the  voter  as  to  candidates  and  the  offices ;  and  it  mani- 
festly did  not  undertake  to  prescribe  the  form  or  mode  of,  or  kind  of 
type  to  be  used  in,  naming  the  candidates  or  in  designating  the  office. 

If  there  had  been  two  persons  of  the  same  name,  it  would  hardly  be 
contended  that  they  could  not  be  distinguished  by  giving  the  residence 
of  the  candidate.  Or,  If  there  had  been  a  John  Doe  and  a  John  Doe 
2d,  and  the  latter  had  been  a  candidate,  his  name  could  be  so  written. 
Had  the  eighth  district  been  printed  8th  District  on  the  ballot,  there  is 
nothing  in  that  which  would  have  been  a  violation  of  the  statute,  al- 
though the  numeral  8  is  a  "figure." 

The  two  parts  of  the  statute  are  distinct,  and  the  clause,  "withotu 
figures,  marks,  rulings,  characters,  or  embellishments,"  has  reference 
manifestly  to  the  outside  and  to  the  inside  of  the  paper,  independently 
of  the  names  of  the  candidates  and  the  designation  of  the  offices. 
Otherwise  it  would  be  impossible  to  write  or  print  a  ballot,  as  it  would 
necessarily  have  "  figures,"  "  marks,"  and  "  characters  "  in  it  when  writ- 
ten or  printed. 

A  literal  interpretation  must  be  avoided  if  necessary  to  give  elOfect  to 
the  general  intent.  The  letter  must  give  way  to  the  spirit,  and  a  reason- 
able construction  adopted. 


LOWE    VS.    WHEEi:.ER.  83 

The  word  "  figure  "  may  mean  a  statue,  an  image,  or  the  form  of  any- 
thing as  well  as  a  numeral.  It  had  reference,  perhaps,  to  the  practice 
of  numbering  each  ballot  as  once  was  usual.  So,  a  "  mark  "  may  be  a 
punctuation  mark  merely ;  a  "  character  "  may  mean  a  letter.  It  is 
manifest  from  the  collocation  of  words  used  what  evil  the  statute  was 
intended  to  reach  and  prevent. 

It  is  not  necessary  to  go  into  any  general  discussion  as  to  this  class 
of  legislation  or  as  to  its  validity.    The  case  does  not  call  for  it. 

To  sustain  the  objection  made  to  the  ballot  by  contestee  would  shock 
both  the  moral  and  the  legal  sense  of  every  fair-minded  man. 

My  conclusion  is  that  the  course  pursued  was  a  perversion  of  the  stat- 
ute, and  the  objection  was  seized  upon  as  a  pretext  and  induced  by  out- 
side manipulation. 

In  any  event,  it  would  seem  that  the  part  which  relates  to  the  candi- 
date for  Congress  may  be  regarded  as  a  separate  ticket. 

A  New  York  statute  once  required  State  and  county  officers  to  be  voted 
for  on  separate  ballots.  At  an  election  held  under  that  statute  a  large 
number  of  ballots  were  cast  for  "  Cook,  for  State  treasurer,"  which  had 
at  the  bottom  of  them  "for  county  judge, Ezra  Graves."  These  bal- 
lots were  alleged  to  be  illegal  and  the  election  contested.  The  supreme 
court  in  passing  on  the  question  said  : 

I  have  not  been  able,  after  the  most  deliberate  consideration  of  the  objection  raised, 
to  perceive  that  there  is  anything  in  it.  The  ballot  for  every  office  on  a  ticket  con- 
taining the  names  of  more  than  one  officer  must  be  regarded  as  a  separate  ballot. 
(People  ra.  Cook,  14  Barbour,  259,  299.) 

The  case  was  carried  to  the  court  of  appeals  and  there  affirmed.  The 
court  said :  "  The  Speiman  ballot,  headed  'State,'  had  at  the  bottom  '  for 
county  judge,  Ezra  Graves.'  Whatever  effect  this  had  on  the  candidate 
for  county  judge,  it  had  none  on  the  candidates  on  the  State  ticket." 
(People  vs.  Cook,  8  K  Y.,  4  Selden,  68,  85.) 

We  refer  incidentally  to  certain  claims  relating  to  certain  precincts  in 

MADISON   CODNTY. 

The  evidence  tends  strongly  to  show  fraud  and  ballot-box  stuffing  in 
this  precinct.  It  will  warrant  the  rejection  of  the  count  and  returns 
made  by  the  inspectors.  Contestee  is  returned  as  having  received  142 
ballots,  and  contestant  57.  The  count  and  return  are  impeached  for 
fraud.  Contestant  has  called  128  voters  who  swear  that  they  voted  for 
him.  The  other  evidence  tends  to  prove  155.  (Record,  pp.  208,  216, 
206,  231,  174,  196,  197,  557,  190,  191,  192,  158.) 

Rejecting thereturnsforfraud,and counting  128  Votes  proved  to  have 
been  cast  for  contestant,  according  to  the  settled  rule,  will  give  him  so 
many  more  votes.  But  as  this  is  not  necessary  in  view  of  the  case  in 
other  respects,  I  do  not  go  into  the  evidence  more  at  length  as  to  this 
precinct. 

As  to  Meridianville  (box  No.  2)  and  Cave  Spring,  the  evidence  tends 
to  show  that  contestant  is  entitled  to  65  votes  more  than  were  counted 
and  returned  for  him  for  these  precincts,  and  that  at  Flint  precinct  he 
lost  17  ballots  net  by  the  vote  not  being  properly  counted  and  returned. 
But  it  is  not  deemed  necessary  to  state  the  evidence  and  proofs,  as  in 
the  view  taken  of  the  case  by  the  committee  this  will  not  affect  the  re- 
sult. 

I  do  not  sustain  the  claim  of  contestee  as  to  Courtland  precinct,  al- 
though there  is  some  apparent  irregularity  in  the  action  of  the  inspect- 
ors, &c.,  in  their  conduct  as  to  the  box. 


84 


DIGEST    OF   ELECTION    CASES. 


CONTESTEE'S  DEFENSE   OR   COUNTEK-CLAIM. 

The  contestee  attempts  to  meet  the  contention  of  contestant,  if  proved, 
by  the  claim  that  illegal  votes  were  cast  for  contestant  by  convicts, 
minors,  non-residents,  and  non-registered  persons. 

The  claim  as  to  minors  and  convicts  appears  by  the  following  tables, 
and  the  evidence  is  referred  to  in  the  same : 

Minors  tcho  voted  for  Wm.  M.  Lowe,  as  claimed. 


Page  of  record. 

Number  of 
minors. 

Names  of  witnesses  who  prove  theaa 
voters  were  minors. 

896 

2 
2 

3 

J.  W.  Morgan. 

892 

893 

814 

R.  C.  Gamble. 

894-899 

William  E.  Blair  and  W.  S.  White. 

856 

S.  S.  Ives. 

958 

Shaler  S.  Ives. 

961 

Younge  A.  Gray. 

16 

Convicts  who  voted  for  Wm.  M.  Lowe,  as  claimed. 


Page  of  record. 

Number   of 
convicts. 

Names  of  witnesses  who  prove  thes* 
men  were  illegal  voters. 

894 

3 
1 
2 
1 

1 
5 
2 

1 
2 

1 
1 

W.  E.  Blair. 

893         

893-899 

A.  D.  Lewis  and  W.  S.  White. 

900-960 

H.  C.  Hvdeand  J.  M.  Angel. 

900  

H.  C.  Hyde. 

John  N.  Martin  and  Joseph  A.  Moor». 

Joseph  A.  Moore. 

Joseph  A.  Moore  and  C.  B.  Hayes. 

Joseph  A.  Moore. 

813-859 

859 

859-860 

859 

863 

872 

S.  T.  Wert. 

20 

The  claim  as  to  non-residents  hardly  needs  more  particular  reference. 
It  is  not  sustained  by  proof. 

Not  finding  either  of  the  claims  to  be  maintained  by  competent  and 
credible  evidence,  I  disallow  them. 


EEGISTKATION. 


Contestee  does  not  set  up  a  want  of  legal  registration  as  vitiating  the 
election  in  any  precinct,  but  alleges  that  persons  not  registered  had  no 
right  to  vote,  and  that  all  votes  cast  by  such  were  illegal,  and  must  now 
be  rejected.  His  claim  and  references  for  proofs  appear  in  the  following 
table,  as  presented  by  him  in  argument : 


LOWE    VS.    WHEELER. 


85 


Connty. 


Precinct. 


g-So 


Kumber  of 
votes  cast. 


1^ 


«  aJ 


it 


Jackson 


Madison. 


Limestone  . 
Landerdale . 


Colbert . 


Lawrence. 


No.  10,  Belief  on  te... 
No.  13,  Barry's  Store 
Ifo.  ir>.  Hunt's  Store. 

No.  17,  Nashville 

Cluttsville 

Madison  X-Roads... 

Madison 

No.  1,  Meridianville. 

Whitesburg 

Collier's 

Triana 

Slough  Beat 

Mooresville 

Shoal  lord 

Oakland 

Florence  

Cherokee. 

Prides 

Leigliton 

South  Florence 

Courtland  No.  1 

Courtland  No.  2 

Mount  Hope 

Landersvilie 

Hampton's 

Red  Bank 

Avoca 

Wolf  Spring 

Hillsboro' 


704-708 

713-716 

717-720 

720-724 

571-584 

584-592 

610-625 

626-642 

645-655 

671-685 

1218-1225 

823-826 

826-831 

835-838 

$  926-929  ) 

I  945-946  5 

< 921-924  \ 

I  939-944  5 

428-436 

414-415 

416-419 

420-427 

1142-1154 

1142-1154 

1168-1171 

1173-1177 

1179-1182 

1184-1186 

1194-1196 

1194-1196 

1196-1198 


691 
694 
695 
696 
656 
658 
659 
665 
668 
685 
1215 
852 
803 
856 

918 

911 

439 
442 
438 
441 
1192 
1139 
1172 
1191 
1182 
1183 
1188 
1187 
1189 


44 

49 

24 

35 

166 

50 

169 

123 

175 

87 

84 

123 

90 

74 

100 

252 

124 

44 

80 

13 

134 

111 

132 

62 

24 

36 

31 

25 

164 


130 
123 
32 
132 
222 
111 
324 
360 
223 
134 
336 
213 
619 
101 


406 

134 

63 

95 

165 

192 

419 

170 

82 

43 

111 

61 

112 

228 


56 

81 

26 

86 

61 

32 

116 

169 

113 

48 

275 

107 

215 

22 


280 

59 

14 

52 

38 

131 

191 

29 

32 

21 

16 

20 

42 

261 


42 

58 
15 
68 
35 
22 
72 

126 
64 
29 

206 
68 

189 
13 


28 
35 
77 

151 
16 
18 
13 
12 
13 
34 

151 


14 
23 
11 
18 
26 
10 
44 
43 
49 
19 
69 
39 
26 
9 

26 

107 
28 

it 

3 

54 

40 

13 

14 

8 

4 

7 

6 

110 


28 

3S 
4 

50 
9 

12 
28 
83 
15 
"19 
137 
29 
163 
4 

51 

6« 

3 

2 

4 

32 

23 

111 

3 

4 

i 

% 

9 

28 

41 


2,  625 


5,630  2,( 


994 


Contestee's  evidence  does  not  show  for  whom  many,  if  any,  of  the 
persons  claimed  to  be  non-registered  voted.  He  has  not  called  the 
persons  themselves,  but  attempted,  with  little  success,  to  prove  it  by 
third  parties.  The  instances  proved  by  any  competent  or  sufficient  evi- 
dence are  very  few  and  need  not  be  stated,  as  they  would  not  change 
the  result  on  any  hypothesis  presented  or  contemplated. 

If  found  that  enough  illegal  votes  were  cast  to  change  the  result,  and 
it  not  appearing  for  whom  they  voted,  the  question  would  be  whether 
the  election  should  be  declared  void,  or  the  vote  distributed  among  the 
candidates,  under  the  rule  laid  down  in  McCrary,  §  298. 

Contestee,  for  aught  that  appears,  could  have  taken  the  evidence  of 
the  witnesses  themselves  to  establish  their  identity  as  the  persons  wiiose 
names  appear  on  the  poll-lists,  and  to  prove  for  whom  they  voted.  This 
he  has  not  done,  and  no  reason  why  not  is  shown. 

Of  course  I  do  not  hold  as  matter  of  law  that  such  is  the  only  mode 
of  proof  allowable,  while  generally  it  is  quite  satisfactory,  as  the  voter 
usually  best  knows,  and  his  evidence  is  direct. 

The  lavvof  Alabama  as  to  registration  involved  needs  first  to  be  stated, 
so  far  as  deemed  material. 

By  article  8  of  the  constitution,  which  will  be  found  at  page  142  of 
the  Code  of  Alabama,  the  qualifications  of  the  voter  are  prescribed  as 
being  a  residence  of  one  year  in  the  State,  of  three  months  in  the 
county,  and  thirty  days  in  the  precinct. 

2.  By  section  5  of  the  same  article  it  is  provided  in  these  words: 


86  DIGEST    OF   BISECTION    CASES. 

The  general  assembly  may,  w  ben  necessary,  provide  by  law  for  the  registration  of 
electors  throughout  the  State,  or  in  any  incorporated  city  or  town  thereof,  and  when 
it  is  so  i)rovided  no  person  shall  vote  at  any  election  unless  he  shall  have  registered  as 
required  by  law. 

Statutes  passed  in  May,  1875,  provided  for  registration  in  the  whole 
State  (code  of  1876). 

§  227.  Secretary  of  state  superintends. — The  secretary  of  state  shall  superintend  the 
registration  of  electors  in  this  State. 

$  228.  Registrars  and  assistant  registrars. — The  secretary  of  state,  on  or  before  the 
first  Monday  of  May,  1875,  or  as  soon  thereafter  as  practicable,  shall  appoint  one  reg- 
istrar in  each  county  in  this  State,  who  shall  appoint  one  assistant  registrar  for  each 
voting  precinct  or  ward  in  the  county  for  which  such  registrars  are  respectively  ap- 
pointed ;  and  such  assistants  shall,  as  soon  as  practicable  after  their  several  appoint- 
ments, make  a  full  registration  list,  as  hereinafter  provided,  of  all  the  electors  in  the 
precincts  or  wards  for  which  such  assistants  are  appointed  respectively ;  and  such 
registrars  and  assistants,  before  entering  on  their  duties,  shall  take  the  oath  of  office 
as  prescribed  in  section  one,  article  fifteen,  of  the  constitution  of  the  State  of  Ala- 
bama, which  oathmay  be  administered  by  any  officer  authorized  by  law  to  administer 
oaths  in  this  State,  which  must  be  filed  in  the  office  of  the  judge  of  probate  of  the 
county ;  and  the  assistant  registrars  are  authorized  to  administer  the  registration 
oath,  and  it  shall  not  be  lawful  for  any  other  officer  or  person  to  administer  the  same. 

$  229.  To  return  list  of  registered  electors. — It  shall  be  the  duty  of  each  assistant  reg- 
istrar to  make  a  due  and  correct  return  of  the  list  of  registered  electors  made  by  him. 

$  230.  Place  and  manner  of  registration. — It  shall  be  the  duty  of  such  assistant  regis- 
trars, within  the  several  precincts  or  wards  for  which  they  are  appointed  respectively, 
to  make  registration  of  the  electors  residing  in  such  precincts  or  wards  upon  blank 
forms  provided  for  that  purpose,  and  shall  not  register  in  any  other  way  or  on  any 
other  form  than  that  prescribed. 

^  231.  Oath  of  elector  and  how  subsa-ihed. — Before  registering  electors,  the  assistant 
registrars  shall  cause  each  elector  who  is  qualified  to  vote  under  the  constitution  and 
laws  of  the  State  of  Alabama  to  take  and  subscribe  an  oath  that  he  is  a  qualified 
elector  under  the  constitution  and  laws  of  the  State  of  Alabama,  and  the  name  of 
each  elector  must  either  be  subscribed  to  such  oath  by  the  elector  himself,  or  the  same 
may  be  subscribed  by  the  assistant  registrar;  but  when  signed  by  the  assistant,  it 
must  be  with  the  consent  and  direction  of  the  elector  so  to  do,  which  shall  be  evi- 
denced by  the  attestation  of  the  assistant  registrar's  name,  written  opposite  to  the 
name  of  the  elector,  under  the  appropriate  head,  on  the  prescribed  form ;  and  the  oath 
shall  be  in  the  printed  and  written  form  at  the  head  of  the  registration  list  prescribed 
by  this  chapter,  and  the  names  of  the  electors  shall  be  subscribed  to  the  same  under 
the  appropriate  head  prescribed  for  the  same  in  snch  list. 

^  232.  Number  and  date  of  registration,  residence,  employment,  color  of  elector,  and  name 
of  employer. — The  assistant  registrars  shall  write  opposite  to  the  name  of  each  elector, 
nuder  the  appropriate  head  in  such  form,  the  number  and  date  of  registration,  his 
place  of  residence,  whether  white  or  colored,  his  employment,  and  if  he  is  in  the  em- 
ployment of  another,  the  name  of  such  employer;  and  if  the  elector  resides  in  any 
town  or  city,  the  street  and  number,  or  other  mark  or  description  by  which  his  place 
of  residence  may  be  identified. 

§  233.  Registration  on  election  day,  and  certificate. — The  assistant  registrars  shall  be 
present  at  the  voting  precinct,  or  ward,  for  which  they  are  respectively  appointed,  on 
the  day  of  election,  to  register  such  electors  as  may  have  failed  to  register  on  any 
previous  day  in  their  precincts  or  wards,  which  registration  must  be  done,  in  every 
respect,  according  to  the  form  prescribed  ;  and  the  assistant  registrar  shall  furnish  to 
each  elector  who  may  register  on  the  day  of  election  a  certificate  of  registration, 
■which  shall  be  in  the  following  form : 

I, ,  assistant  registrar,  do  hereby  certify  that has  this 

day  registered  before  me  as  an  elector. 

(Signed)  , 

Registrar. 

Which  certificate,  signed  by  the  registrar,  shall  be  sufficient  evidence  that  such 
elector  is  registered ;  and  in  case  such  assistant  registrar,  for  any  cause,  is  unable  to 
attend,  or  there  be  a  vacancy  in  the  office  of  assistant  registrar  for  such  precinct  or 
ward,  the  county  registrar  shall  appoint  some  competent  person  as  assistant  registrar 
for  that  day ;  and  if  no  appointment  be  so  made  by  10  o'clock  of  that  day,  then  the 
inspectors  of  election  may  appoint  an  assistant  registrar,  who  may  qualify  and  act  as 
such  for  that  day ;  but  this  section  shall  not  apply  to  incorporated  towns  or  citier 
having  a  population  of  more  than  five  thousand  inhabitants,  except  as  is  hereinaftes 
provided  by  this  chapter. 


LOWE    VS.    WHEELER.  87 

^'^34.  Copy  of  registration  list  delivered  to  judge  of  probate,  and  /loic  bound;  duplicate 
-sen*  Secretary  of  State,  and  how  bound;  original  registration  books  subject  to  inspection ; 
additional  registration  ;  and  supplemental  returns. — Each  assistant  registrar,  after  having 
registered  all  the  electors  in  his  respective  precinct  or  ward,  as  near  as  may  be,  and  not 
more  than  three  months  after  his  appointment,  shall  make  a  true  copy  of  same  in  the 
registration  book  furnished  for  the  purpose  under  the  provisions  of  this  chapter,  and 
shall  also  make  a  true  copy  or  duplicate  of  the  original  registration  list,  which,  to- 
gether with  the  original,  as  soon  as  practicable  after  same  is  completed,  shall  be  re- 
turned to  the  office  of  the  judge  of  probate  of  the  county  in  which  such  registration 
is  made,  and  delivered  to  the  judge  of  probate,  who  shall,  as  soon  as  the  registration 
for  all  the  precincts  and  wards  in  such  county  have  been  made,  cause  the  original  lists . 
so  returned  to  him  to  be  securely  bound  in  book  form,  in  good  substantial  pasteboard 
binding,  and  presetve  the  same  in  his  office  for  public  inspection,  keeping  the  several 
precincts  and  wards  separate  from  each  other  in  arranging  same  for  binding,  but  bind- 
ing the  whole  of  the  originals  for  the  county  in  one  volume,  appropriately  labeled; 
and  the  judges  of  probate  of  the  several  counties  shall,  as*  soon  as  such  returns  are 
fully  made,  return  the  duplicates  to  the  Secretary  of  State,  who  shall  aiTange  same  by 
precincts,  wards,  and  counties,  and  so  cause  the  same  to  be  bound  in  oue  or  more  vol- 
iimes,  and  in  such  style  as  he  may  deem  advisable  for  convenient  reference  and  preser- 
vation; and  the  registration  books  made  out  by  the  assistant  registrars  in  the  several 
precincts  and  wards  shall  be  kept  by  them,  subject  to  the  inspection  of  the  public,  and 
in  which  they  shall  make  entry  of  all  additional  registrations  made  by  them,  respect- 
ively, from  time  to  time,  and  shall,  not  less  than  fifteen  days  before  any  general  or 
special  election  held  in  the  county,  make  a  supplemental  return  to  the  judge  of  probate 
in  like  manner  as  the  first  return. 

$235.  Duty  of  assistant  registrars  to  revise  lists;  lioic  prepared  and  delivered  to  judge  of 
probate. — It  shall  be  the  duty  of  such  assistant  registrars  in  each  year  to  make  a  re- 
vised list  of  electors  for  their  precincts  or  wards,  showing  the  names  of  all  such 
electors  as  shall  be  known  to  or  be  proven  to  them  to  have  died  or  to  have  removed 
from  the  ward  or  precinct,  or  to  have  become  disqualified  as  electors  by  the  convic- 
tion of  any  felony,  and  also  of  all  such  as  have  registered  at  and  since  the  last  elec- 
tion ;  which  list  shall  be  prepared  in  the  manner  prescribed  for  the  other  lists,  and 
shall  be  delivered  to  the  judge  of  probate  not  less  than  fifteen  days  before  any  gen- 
eral or  special  election ;  *  and  in  incorporated  towns  or  cities  having  a  population  of 
more  than  five  thousand  inhabitants  not  less  than  ten  days  before  a  general  or  special 
election. 

ij  236.  Xot  laicful  to  register  icithin  twenty  days  before  election  ;  special  registrations,  how 
returned  and  treated. — It  shall  not  be  lawful  to  register  any  elector  within  twenty  days 
before,  nor  in  any  incorporated  town  or  city  having  a  population  of  more  than  five 
thousand  inhabitants  within  fifteen  days  before,  any  general  or  special  election  day; 
and  all  registrations  made  on  the  election  day  by  any  registrar  appointedfor  that  day 
only  shall  be  returned  to  the  assistant  registrar  for  that  precinct  or  ward  properly 
certified,  which  shall  be  returned  to,  and  be  treated  by,  the  judge  of  probate  as  if 
made  by  the  regular  assistant  registrars.  *  But  in  incorporated  cities  or  towns  hav- 
ing a  iiopulation  of  more  than  five  thousand  inhabitants  any  person  who  may  have 
attained  the  age  of  twenty-one  within  fifteen  days  next  preceding  any  general  orsije- 
cial  election,  and  who  is  qualified  to  vote  under  the  constitution  and  laws  of  the  State 
of  Alabama,  may  be  registered  by  the  probate  judge  of  the  county  on  the  day  of  elec- 
tion in  the  same  manner  as  is  prescribed  for  the  registration  of  electors;  and  such 
judge  of  probate  shall  cause  the  name  of  such  elector  to  be  entered  upon  the  registra- 
tion list  of  the  ward  in  which  such  elector  shall  reside,  and  shall  issue  to  such  elector 
a  certificate  of  registration  as  prescribed  by  section  233. 

^  238.  Books  and  blanks  furnished  probate  judges  for  assistant  registrars,  t — The  secre- 
tary of  state  is  authorized  and  directed  to  obtain  and  furnish  to  the  probate  judges  of 
the  several  counties  in  the  State  the  books  and  blanks  necessary  for  the  use  of  the  sev- 
aral  assistant  registrars;  such  blanks  shall  be  priuted  and  ruled  on  good  paper,  suit- 
able for  binding  in  book  form,  as  may  be  directed  by  the  secretary  of  state,  one-third 
of  which  .shall  be  securely  bound  in  good  paper  pasteboard  and  leather  binding,  iu 
sufficient  numbers  to  furnish  one  book  to  each  assistant  registrar  in  the  State,  together 
with  at  least  as  many  blanks  unbound  as  are  contained  in  such  books;  and  each  page 
of  such  books  shall  be  in  the  following  form : 

State  of  Alabama, 

County  of ; 


We,  the  undersigned  registered  electors,  each  for  himself,  do  solemnly  swear  (or 
affirm)  that  I  will  support  and  maintain  the  Constitution  and  laws  of  the  United 
States,  and  the  constitution  and  laws  of  the  State  of  Alabama ;  that  I  am  not  excluded 


k 


'As  amended  February  7,  1877,  p.  116,  sec.  1. 


S8 


DIGEST  OF  ELECTION  CASES. 


from  registering  or  voting  by  any  of  the  clauses  in  section  three  of  article  eight  of  the 
constitution  of  the  State  of  Alabama,  and  that  I  am  a  qualified  elector  under  the  con- 
stitution and  laws  of  this  State. 


No. 


Bate. 


!Name  of  elec- 
tois. 


"White  or  col- 
■  ored. 


Registrar's 
attestation. 


Residence,  by 
precinct  or 
ward. 


Employer's 
name  and  re- 
marks. 


I, 


-,  registrar  for  said  precinct  (or  ward),  in  said  county  and  city  of- 


do  hereby  certify  that  the  above  and  foregoing  names  of  registered  voters,  from  number 

one  to ,  inclusive,  were  duly  registered  by  me  according  to  law ,  between  the  dates- 

of and ,  in  said  precinct  (or  ward),  and  that  each  of  said  persons  so  regis- 
tered took  and  subscribed  before  me  the  above  and  foregoing  oath,  on  the  days  and  dates. 
set  opposite  to  their  several  names  respectively. 
Witness  my  hand  this day  of ,  1&— . 


Registrar. 

$  239.  Probate  judges  make  out  and  file  regiatraiion  lists,  furnish  copies  to  inspectors,  and 
post  list." — Each  probate  judge  of  the  several  counties  shall,  from  the  registration  list 
of  electors  returned  to  their  several  offices  make  a  con-ect,  alphabetical  list  of  the 
qualiiied  voters  of  such  county,  arranged  by  precincts  and  wards,  correcting  and  com- 
pleting the  same  from  the  supplemental  and  revised  returns  of  assistant  registrars, 
which  list,  when  so  completed,  shall  be  certified  by  the  probate  judge  officially  to  b& 
a  full  and  correct  transcript  of  the  list  of  registered  electors  as  the  same  appears  from 
the  returns  of  the  registrars  in  his  office ;  one  copy  of  which  list  the  judge  shall  deliver 
to  the  inspectors  of  election  in  each  precinct  or  ward  immediately  preceding  every 
election,  and  one  copy  of  the  whole  list  of  registered  electors  in  the  county  shall  be 
posted  at  the  court-house  of  the  county  ten  days,  and  in  incorporated  towns  and  citie» 
having  a  population  of  more  than  five  thousand  inhabitants  five  days,  before  the 
election. 

§  241.  Segistration  must  be  in  precinct  or  ward. — It  shall  not  be  lawful  to  register  any 
person  except  in  the  voting  precinct  or  ward  in  which  such  person  is  entitled  by  law 
to  vote ;  and  the  assistant  registrars,  when  they  have  no  personal  knowledge  of  the 
identity  or  residence  of  an  elector,  shall  examine  him  under  oath  touchiug  the  same, 
which  oath  shall  be  administered  by  the  assistant  registrars. 

A  right  of  challenge  is  given  at  the  polls. 

Section  278  of  the  Code  of  Alabama  is  in  these  words: 


OATHS  ADMINISTERED  BY  INSPECTORS  IN   CASK  OF  -CHALLENGE. 

When  any  person  offering  to  vote  is  challenged  by  any  qualified  elector,  before  sucb 
person  shall  be  allowed  to  vote  he  shall  take  and  subscribe  an  oath,  which  one  of  the 
inspectors  of  such  election  shall  tender  and  administer  to  him,  and  which  shall  be  in 
the  following  form : 

State  of  Alabama, 

County : 

I, ,  do  solemnly  swear  (or  affirm)  that  I  am  a  duly  qualified  elector 

under  the  Constitution  and  laws  of  the  United  States,  and  the  constitution  and  laws 
of  the  State  of  Alabama,  and  that  I  have  resided  in  the  State  of  Alabama  one  year 
next  preceding  this  election,  three  months  in  this  county,  and  have  actually  resided 
thirty  days  in  this  precinct  or  ward  (as  the  case  may  be)  next  preceding  this 
day,  and  that  I  am  twenty-one  years  of  age,  or  upwards,  and  that  I  have  not  voted 
before  on  this  day  at  any  general  or  special  election,  at  the  place  of  voting,  and  that 
I  have  not  been  convicted  of  treason,  embezzlement  of  public  funds,  malfeasance  in 

*A8  amended  Feb.  7,  1877,  p.  116,  sec.  1. 


LOWE    VS.    WHEELER.  8J> 

oflSce,  or  of  any  crime  piiniebable  by  law  with  imprisonment  in  the  penitentiary,  lar- 
ceny or  bribery.     So  help  nie  God. 

And  iu  addition  to  such  oath,  if  the  person  so  challenged  is  not  personally  knotcn  to  one 
of  the  inspectors  to  have  the  qualifications  required  by  latv,  then  one  of  them  shall  require 
ench  person,  before  he  shall  be  allowed  to  vote,  to  prove  his  identity  and  residence  in 
the  State,  county,  and  precinct  or  ward  in  which  he  oft'ers  to  vote,  by  the  oath  or 
some  elector  personally  known  to  some  one  of  such  inspectors  to  be  a  qualified  elector, 
which  oath  shall  be  administered  by  one  of  the  inspectors,  and  be  in  the  following 
form : 

State  of  Alabama, 

County: 

I, ,  do  solemnly  swear  (or  a£Qrm,  as  the  case  may  be)  that  I  haveknowu 

(bere  insert  the  name  of  the  person  offering  to  vote)  for  the  last  twelve  months  pre- 
ceding this  election,  and  that  he  has  been  a  resident  of  this  State  for  said  time,  three 
months  in  this  county,  and  that  he  has  actually  resided  in  this  precinct  (or  ward)  for 
the  last  thirty  days,  and  I  believe  he  is  twenty-one  years  of  age  or  upwards,  and  that 
he  has  not  voted  before  on  this  dav  at  any  general  or  special  election.  So  help  m& 
God. 

And.upon  such  oath  being  duly  taken  and  subscribed,  the  ball5tof  the  person  offer- 
ing to  vote  must  be  received  and  deposited  as  other  ballots  of  qualified  electors. 
And  it  shall  be  the  duty  of  the  inspectors  to  tile  all  the  oaths  so  taken  and  subscribed,, 
and  when  the  election  is  closed,  such  inspectors  shall  forward  them,  in  a  sealed  pack- 
age, to  the  judge  of  probate,  who  shall  lay  them  before  the  next  grand  jury  sitting  for 
said  county. 

Contestant  contends  that  a  non -registered  elector  is  not  disqualified 
under  the  laws  of  Alabama.    His  argument  on  this  point  is  inserted : 

Constitution  provides :  "The  general  assembly  may,  when  necessary,  provide  by 
law  for  the  registration  of  electors  throughout  the  State,  or  in  any  incorporated 
city  or  town  thereof,  and  when  it  is  so  provided  no  person  shall  vote  at  any  electiou 
unless  he  shall  have  registered  as  required  bylaw."  What  is  meant  by  the  clause,. 
"  when  it  is  so  provided! "  The  word  "so"  qualifies  and  gives  meaning  to  the  clause. 
It  means  manner  or  extent.  It  is  equivalent  to  saying  that  when  the  law  shall  pro- 
vide in  that  manner,  or  to  that  extent.  That  is,  when  the  law  shall  require  person.* 
to  register  as  a  necessary  prerequisite  before  voting,  then  no  person  shall  vote  until 
he  shall  have  registered,  as  required  by  law.  Is  there  any  law  of  the  State  of  Ala- 
bama which  requires  an  elector  to  register  before  he  can  vote,  or  authorizes  the  rejec- 
tion of  his  vote  after  it  is  cast  because  he  has  not  registered  T  The  statute  regulating: 
the  qualification  of  electors  is  $224,  Code  of  Alabama  [1876],  is  as  follows:  "Every 
male  citizen  of  the  United  States,  and  every  male  person  of  foreign  birth  who  ha» 
been  naturalized,  or  who  may  have  legally  declared  his  intention  of  becoming  a  citizen 
of  the  United  States,  before  he  offers  to  vote,  who  is  21  years  old  or  upwards,  who 
shall  have  resided  in  this  State  1  year,  3  months  in  the  county,  and  30  days  in  the 
precinct  or  ward,  next  immediately  preceding  the  election  at  which  he  off'ers  to  vote,  is,, 
unless  within  the  disabilities  Imposed  by  the  provisions  of  this  chapter,  a  qualifietl 
elector,  and  may  vote  in  the  precinct  or  ward  of  his  actual  residence,  and  not  elsewhere,, 
for  all  officers  elected  by  the  people."  Who  are  the  persons  disqualified  by  the  pro- 
visions of  this  chapter  f  "Those  who  have  been  convicted  of  treason,  embezzlemeut 
of  public  funds,  malfeasance  in  office,  larceny,  bribery,  or  other  crime  punishable  by 
imprisonment  in  the  penitentiary,  and  idiots  or  lunatics,  shall  not  be  permitted  to  vote 
in  this  State  at  any  election  by  the  people."  These  are  the  only  persons  prohibited 
from  voting.  They  are  not  prohibited  because  they  have  failed  toregister,  but  because 
they  have  been  convicted  of  specified  crimes,  or  are  idiots,  or  lunatics;  all  other  per- 
sons are  legal  voters  who  possess  the  qualifications  prescribed  in  $  224.  What  are 
these  qualifications  T  The  elector  must  be  a  citizen  of  the  United  States,  or  have  de- 
clared his  intention  to  become  a  citizen  of  the  United  States,  must  be  21  years  old, 
must  have  resided  one  year  in  the  State,  three  months  iu  the  county,  and  thirty  days 
in  the  precinct,  or  ward.  These  are  the  only  qualifications — citizenship,  residence,  and 
age.  Not  a  word  is  said  about  registration.  If  the  elector  has  all  the  qualifications 
mentioned  in  the  statute  he  is  a  legal  voter,  and  there  is  no  law  to  reject  his  ballot 
because  he  is  not  registered. 

Section  278  requires  persons  who  are  challenged  to  take  an  oath,  which  is  herein 
set  out.  The  elector  is  required  to  swear  to  age,  residence,  and  that  he  has  not  voted 
at  any  other  precinct  on  that  day,  and  in  addition  to  such  oath,  if  the  person  chal- 
lenged is  not  personally  known  to  have  the  qualiiications  required  by  law,  he  must 
prove  his  identity  and  residence  in  the  State,  county,  precinct,  or  ward  by  the  oath 
of  some  elector  personally  known  to  one  of  the  inspectors,  to  be  a  qualified  elector. 
He  is  required  to  prove  every  fact  but  registration.  Why  is  he  not  required  to  prove 
registration  ?    Because  registration  is  not  a  necessary  qualification  of  a  legal  elector.. 


so  DIGEST    OF    ELECTION    CASES. 

What  is  the  object  of  registration  ?  It  is  to  furnish  evidence  to  the  inspectors  of 
who  are  legal  voters.  It  is  not  coaclnsive,  nor  the  only  evidence.  He  may  be  chal- 
lenged, although  his  name  may  be  on  the  registration  list,  and  he  must  then  prove  his 
•qualifications  by  his  own  oath,  and  if  he  is  not  known  to  one  of  the  inspectors  to  be  a 
•quali&ed  elector,  then  he  must  j)rove  his  qualification  by  some  elector  known  to  the 
inspectors.  K  his  name  is  not  on  the  registration  list,  and  he  is  challenged,  he  can 
prove  his  qualification  in  the  same  manner.  When  this  proof  is  tendered,  the  in- 
-spectors  have  no  discretion,  but  are  compelled  to  receive  his  ballot,  and  put  it  in  the 
box.  The  conclusion  is  that  registration  has  not,  in  Alabama,  been  made  a  necessary 
qaalification  to  vote. 

There  seems  to  be  no  decision  of  the  State  courts  on  the  point  raised, 
and  the  question  becomes  immaterial,  unless  the  necessary  basis  of 
facts  is  first  established.  I  am  inclined,  however,  to  the  opinion  that, 
under  the  constitution  and  the  statutes  passed  thereunder  (both  being 
in  harmony),  that  registration  was  designed  as  a  reasonable  regulation, 
although  not  prescribed  as  a  qualification. 

The  question  is  not  free  from  doubt,  but  considering  the  object  and 
purposes  subserved  by  a  system  of  registration,  I  am  inclined  to  so  hold. 

It  is  quite  doubtful  whether  the  law  of  Alabama  renders  void  a  vote 
of  a  non-registered  elector  when  once  cast  and  received.  But  for  the 
purposes  of  the  present  case,  I  may  safely  assume  that  registration  was 
intended  as  a  prerequisite,  and  so  regard  it. 

Analogous  questions  were  discussed  in  the  case  of  Finley  vs.  Bisbee 
in  the  Forty-sixth  Congress,  and  in  Curtin  vs.  Yocum  in  the  Forty-sixth 
<3ougress.  They  furnish,  however,  no  substantial  authority  beyond  the 
general  doctrine  discussed,  as  the  constitution  and  statutes  of  those 
States  differ  materially  from  those  of  Alabama. 

While,  for  the  purposes  of  this  case,  I  assume  that  registration  is  a  pre- 
requisite in  Alabama  as  a  reasonable  regulation,  I  find  that  the  proof 
does  not  sustain  the  charge  made  by  the  contestee. 

The  number  of  non-registered  votes  seems  quite  large  under  con- 
testee's  allegations.  And  if  the  law  of  Alabama  is  as  claimed,  it 
seems  quite  strange  that,  in  a  hotly  contested  election  such  as  this  was, 
and  when  the  polls  were  managed  and  attended  by  vigilant  ofQcers  and 
challengers,  with  a  copy  of  the  registration  lists  before  them,  about  one- 
third  of  the  whole  number  of  electors  in  the  precincts  referred  to  were 
not  registered. 

The  following  circulars  will  show  how  the  canvass  was  conducted. 
It  ajipears  that  the  Democratic  party  had  in  most  of  the  ijreciucts  two 
at  least  of  the  three  inspectors,  and  in  some  cases  all  of  them,  besides  the 
other  officers.  It  must  be  presumed  that  the  managers  and  challengers 
knew  and  could  identify  easily  most,  if  not  all,  the  voters  in  the  precincts. 
I  give  the  printed  document  in  full,  as  bearing  upon  this  issue  and 
affecting  probabilities : 

ExHiBrr  D. 

The  following  recommendations  are  made  to  the  respective  Hancock  clubs  in  the 
8th  Congressional  district  of  Alabama.  Each  club  can  judge  which  of  the  recommen- 
dations are  adapted  to  their  locality,  and  will,  of  course,  only  adopt  measures  as,  in 
their  judgment,  seems  to  them  expedient.  A  prompt  and  vigorous  compliance  with ' 
the  plans  they  adopt  is  earnestly  urged. 

THE   WHITE   VOTE. 

1.  Make  a  list  of  white  voters  in  each  precinct  not  on  the  roll  of  its  club. 

2.  Appoint  a  committee  of  one  member  to  wait  on  each  of  these  and  respectfully 
«nd  cordially  invite  him  to  join  us.  The  committee  to  report  at  the  next  meeting  ot 
the  club. 


LOWE    VS.    WHEELER.  91 

3.  If  any  oue  fails  to  respond  to  this  invitation,  send  a  committee  of  two  other  mem- 
bers most  likely  to  iniiuence  him,  who  will  urge  him  by  every  consideration  that  can 
be  presented  not  by  lethargy  or  inaction  to  desert  his  kindred  and  country  in  this  ef- 
fort of  deliverance,  and  in  some  cases  to  tell  him  that  his  decision  will,  in  the  opinion 
of  many  of  his  friends  and  neighbors,  determine  whether  we  regard  him  as  i%  friend  or 
foe  to  our  party. 

With  some  persons  such  extreme  expressions  would  not  be  advisable,  as  many  gen- 
tlemen who  do  not  care  to  have  their  names  enrolled  in  clubs  are  our  earnest  friends. 

THB  BLACK  VOTE. 

1.  Make  at  once  a  complete  list  of  the  qualified  negro  voters  in  your  precinct,  in 
which  shall  be  set  down : 

First.  The  name  and  address  of  each  voter. 

Second.  With  whom  he  works,  and  whether  as  a  hired  hand  or  tenant. 

Third.  What  merchant  or  other  person  advances  for  him. 

2.  It  is  deemed  preferable  that  this  census  be  made  by  regularly  appointed  census 
takers  or  committees,  and  that  the  negro  voter  should  know  that  he  is  thu8  enrolled  by  the 
club. 

Returns  to  the  central  organization  of  the  county. 

3.  As  soon  ks  these  lists  are  completed,  each  club  will  promptly  forward  a  copy  to 
the  connty  chairman,  to  the  end  that  all  may  be  collated  and  printed. 

A  copy  of  the  county  vote  thus  registered  should  be  in  the  hands  of  oar  friends  at 
each  voting  precinct  on  the  day  of  the  election. 

4.  Make  a  separate  list  of  those  members  of  the  club  who  think  they  have  no  in- 
fluence with  the  negro  voters  and  detail  each  one  to  look  after  one  or  more  lukewarm 
or  infirm  white  men  in  the  precinct,  and  see  that  they  vote. 

5.  There  are  a  number  of  negroes  who  will  not  vote  with  us,  but  who  will  promise 
to  8tay  away  from  the  polls. 

To  look  after  these  and  see  that  they  adhere  to  their  promise,  enroll  young  white 
men  of  the  precinct  under  the  voting  age,  before  the  day  of  the  election,  and  assign 
«ach  one  to  his  negro. 

A  legitimate  and  peaceful  election. 

The  foregoing  suggestions  contemplate  winning  the  election  by  fairly  placing  in  the 
boxes  the  most  votes  legitimately  obtained.  Systematic  and  energetic  exertion  will 
do  it.  Each  member  of  the  Hancock  clubs  must  have  his  part  in  the  work  assigned 
him  and  the  club  hold  him  to  his  full  performance. 

Rioting  before  or  at  the  polls,  or  race  collision  brought  about  by  the  whites,  are 
deemed  almost  insane  folly.  We  may  carry  the  election  by  these  means,  but  we  would 
not  reap  the  beneficial  results. 

On  the  other  hand,  the  colored  men  who  go  with  ua  must  be  protected  there  and  at 
all  times.  And  while  it  is  not  expected  that  insolent  aggression  be  submitted  to  by 
the  white  man,  every  consideration  of  patriotism  and  every  hope  of  success  in  the 
effort  we  are  making  to  establish  the  constitutional  free  government  of  our  fathers 
iihould  lead  our  friends  to  avoid  every  occasion  of  disturbance;  and  if  they  unfortu- 
nately arise,  then  be  sure  they  are  in  the  right. 

If  we  attend  the  meetings  of  the  Radical  party  hereafter,  each  club  in  whose  terri- 
tory a  meeting  shall  be  expected  shall  promptly  inform  the  county  chairman,  to  the 
end  that  he  may  order  a  proper  attendance  from  the  clubs. 

It  is  of  the  first  importance  that  the  county  chairman  or  central  organization  be  kept 
thoroughly  informed  of  the  progress  of  the  canvass. 

If  our  plans  are  or  are  not  succeeding  we  must  know  it,  so  as  to  conform  to  circum- 
atances. 

THE  ELECTION. 

1.  The  club  will  use  their  influence  to  cause  all  persons  employing  Democratic  labor 
to  aid  them  to  be  present  and  vote. 

2.  Make  a  list  of  white  men  who  from  infirmity  or  other  causes  need  bringing  to  the 
polls,  and  assign  a  member  of  the  club  to  each  one  of  these. 

3.  Appoint  two  challengers  and  furnish  each  with  a  copy  of  the  list  of  voters  or 
census. 

4.  Appoint  a  committee  of  members  who  will  exercise  general  superintendence  and 
aee  that  the  programme  on  each  election  day  is  carried  out. 


92  DIGEST    OF    ELECTION    CASES. 

5.  Use  all  lawful  means  to  watch  and  keep  to  their  promise  those  negroes  wbo  have 
agreed  not  to  vote. 

But  above  all  things  be  careful  in  this  to  avoid  intimidation. 

PLAN   OF   CAMPAIGN. 

1.  The  Hancock  clubs  for  the  election  of  all  Democratic  nominees  will  meet  no*; 
less  than  twice  a  month;  oftener  when  expedient,  and  in  executive  session  with 
closed  doors. 

2.  It  is  desirable  that  our  a'ttention  be  concentrated  upon  selected  negro  voters  to 
secure  the  majority  desired,  and  that  the  others  be  let  alone. 

Those  selected  for  our  efforts  should  be,  not  party  leaders,  office-seekers,  or  other* 
who  expect  to  make  something  out  of  the  Radical  party,  but — 
First.  Those  who  have  acquired  property  and  pay  taxes. 
Second.  Those  whose  relations  to  and  standing  with  the  whites  is  best. 
Third.  Those  who  are  poorest  and  most  dependent  upon  the  whites. 
Fourth.  The  weaker  classes  generally. 

3.  It  is  deemed  best  to  operate  upon  the  individual  negro  voters  and  to  carefully 
avoid  attempting  to  influence  them  in  masses.  To  this  end,  when  your  register  of 
negro  voters  is  complete,  submit  it  to  your  club,  and  require  each  member  to  select 
such  negro  or  negroes  as  he  can  influence.  Let  such  member  be  a  committee  of  one 
for  the  purpose  he  has  undertaken  and  report  results  to  the  executive  committee  of 
the  club;  these  results  to  be  registered,  and  report  when  called  for  by  the  county 
chairman. 

It  is  hardly  probable  that  so  many  persons  would  openly  violate  the 
law  or  be  allowed  by  sworn  officers  to  do  so.  The  penalty  prescribed 
for  the  fraudulent  voter  is  severe  under  the  laws  of  Alabama,  although  it 
is  said  to  be  quite  light  comparatively  as  regards  the  officers  of  election. 
They  had  with  them  in  each  precinct,  as  must  be  assumed  under  the 
provisions  of  the  law  cited,  full  certified  copies  of  the  registration  lists 
with  the  names  of  the  electors  alphabetically  arranged  thereon,  and  the 
assistant  registrar  of  the  precinct  was  required  to  be  present  at  the 
polls  with  papers  ready  to  register  all  electors  who  had  not  been  regis- 
tered prior  to  that  day,  and  it  may  be  assumed  that  he  was  present,  or 
that  some  other  person  was  appointed  by  the  inspectors  to  attend  to 
that  duty  in  his  absence. 

The  vigilance  exercised  generally  is  illustrated  by  what  was  done  in 
regard  to  the  so-called  marked  ballots  already  considered.  Similar 
activity  is  probable  in  respect  to  the  registration  and  challenging. 

It  is  not  now  claimed  or  shown  that  any  of  those  who  voted  were  not 
in  fact  qualified  voters  and  entitled  to  vote  otherwise,  or  that  any  of 
them  were  challenged.  Ko  one  of  them  is  called  as  a  witness  to  prove 
his  identity  or  failure  to  register. 

All  this  renders  the  claim  of  contestee  very  improbable.  It  would 
require  proof  of  an  indubitable  character. 

It  is  the  settled  law  of  elections  that  where  persons  vote  without  challenge,  it  will 
be  presumed  that  they  were  entitled  to  vote,  and  that  the  sworn  officers  of  the  elec- 
tion who  received  their  votes  performed  their  duty  properly  and  honestly,  and  the 
burden  of  proof  to  show  the  contrary  devolves  on  the  party  denying  their  right  to 
vote.     (Report  in  Finley  vs.  Bisbee,  Forty-fifth  Congress.) 

We  call  attention  to  the  case  of  Perry  vs.  Kyan,  68  Illinois,  172: 

Where  a  person  votes  at  an  election  without  having  been  registered  and  witliout 
any  proof  of  right,  if  it  does  not  appear  he  was  challenged  or  any  objection  made  to 
his  vote,  the  presumption  must  be  that  he  was  a  legal  voter  and  was  known  to  the 
judges  of  election. 

In  83  Illinois,  498,  where  a  registry  law  very  similar  to  the  law  now 
under  consideration  was  construed  by  that  court,  it  was  held : 

The  presumption  of  the  legality  of  a  vote  in  no  way  depends  npon  the  omission  to 
challenge  or  object  to  it,  or  any  presumed  knowledge  of  the  judges  of  election,  but  it 


LOWE    VS.    WHALER.  93 

arises  from  the  fact  of  its  having  been  deposited  in  the  ballot-box.     When  once  de- 
posited it  will  be  presumed  to  be  a  legal  vote  until  there  is  evidence  to  the  contrary. 

Now,  let  us  see  what  the  proof  adduced  is. 

Coutestee  has  procured  aud  put  in  evidence  certain  papers  certified 
to  by  the  probate  judges  in  five  several  counties  respectively,  purport- 
ing to  be  copies  of  the  registration  lists  for  the  precincts  involved,  and 
also  of  papers  called  the  poll-Rsts  from  the  same  precincts.  His  claim 
is  that  he  produces  certified  copies  of  all  the  registration  lists  of  these 
precincts,  which  show  all  the  persona  registered  and  qualified  to  vote 
in  the  same,  and  poll-lists  showing  the  names  of  all  those  who  did  vote 
iis  written  down  by  the  clerks  at  the  election.  By  comparing  these 
l)apers  in  each  precinct  named  in  his  table,  cited  hereinbefore,  he  finds, 
as  he  says,  and  as  witnesses  who  have  compared  them  swear,  2,698 
names  in  the  aggregate  on  the  poll-lists  which  are  not  on  the  registra- 
tion lists,  and  he  contends  that  it  follows  that  they  were  not  registered, 
and  their  votes  illegal. 

The  minority  of  the  committee,  in  their  report  (p.  27)  in  Bisbee  v. 
Finley,  an  analogous  issue,  said  that  "  the  evidence  relied  on  was  wholly 
inadequate,  being  altogether  inferential.^'    But  we  go  further : 

Now,  in  order  to  have  this  proof  satisfactory  and  sufficient  it  must  at 
least  be  shown  by  affirmative,  competent,  and  credible  evidence  that 
the  records  contain  copies  of  all  of  theoriginal  and  supplementary  lists 
of  registration  made  out  by  the  registrars  and  assistant  registrars  since 
1875  and  before  the  election  of  November  2,  1880,  together  with  all  that 
were  made  on  election  day  at  the  polls  by  the  assistant  registrars,  or 
those  appointed  in  their  i)lace  by  the  inspectors  in  the  absence  of  the 
registrar.  Unless  we  have  copies  of  all  the  registration  books  and 
lists,  we  have  not  got  the  i)roper  basis  for  comparison. 

We  must  next  have  all  of  the  requisite  poll-lists  duly  proved  aud 
])roperly  authenticated. 

Upon  examining  the  copies  certified  to,  we  do  not  find,  save  in  a 
few  cases,  what  answers  these  requirements.  I  find  certified  lists  ex- 
tracted or  taken  from  books,  not  copies  of  the  original  books  or  lists, 
or  what  purport  to  be  coi)ies  of  the  same.  I  find  nothing  to  show 
what  names  were  once  on  them,  and  been  dropped  or  taken  oft'  by  reason 
of  deaths,  removals,  or  disabilities,  or  for  other  reasons.  Judge  Kich- 
ardson  certifies,  page  1225,  that  one  volume  is  missing  in  Madison 
County,  and  Judge  Talley  that  part  are  lost  in  Jackson  County  (Eec, 
p.  798.)  Few  of  the  lists  are  verified  in  the  original  by  the  certificate  of 
the  registrar,  as  required  by  statute,  and  as  it  must  be  presumed  they 
would  be  if  genuine.  In  some  of  the  counties  the  copies  annexed  do  not 
cover  the  whole  period  of  time  from  1875,  the  date  of  the  first  registra- 
tion, to  the  day  of  election,  and  including  the  lists  made  on  the  day  of 
election  uuder  the  law. 

The  papers  copied,  or  purporting  to  be  extracted  from,  are  not  many 
of  them  in  the  form  prescribed,  with  the  appropriate  headings,  contents, 
and  certifications,  as  they  would  be  if  the  genuine  originals.  The  case 
is  such  as  to  demand  legal  and  strict  proof. 

I  am  not  satisfied  with  that  adduced.  It  is  too  loose,  uncertain,  and 
irregular,  and  so  liable  to  error,  mistake,  and  omission  as  to  require 
extrinsic  evidence,  which  we  have  not  got,  in  its  sup])ort.  Mere  certifi- 
cates of  judges  beyond  that  of  copies  of  papers  given  are  not  enough 
to  meet  counter-evidence  and  i)resumptions. 

I  do  not  mean  to  intimate  that  any  of  the  judges  of  ])robate  would 
knowingly  make  or  give  false  certificates,  or  intentionally  withhold  any 
lists.  But  wlien  we  find,  as  we  do,  proofs  that  registration  lists  have  been 


94  DIGEST    OF   ELECTION    CASES. 

kept  loosely  and  not  bound  up  in  books,  as  the  law  requires,  some  of  them 
lost  and  not  to  be  found,  some  of  them  made  up  since  the  election  was 
held,  many  of  them  not  covering  the  whole  period  of  registration,  and 
few  of  them  answering  in  form  or  substance  the  requirements  of  the  law. 
the  papers  furnished  are  not  entitled  to  full  credit.  Several  of  the 
judges  have  been  examined  as  witnesses,  but  they  have  failed  to  supply 
the  needed  evidence  that  the  lists  produced  are  all  that  were  ever  re- 
turned into  their  offices,  and  supply  other  facts  needed  to  give  certainty 
and  exclude  certain  reasonable  hypotheses. 

(See  evidence  of  Judge  Harroway,  pp.  906,  907 ;  Bridges,  pp.  321-325; 
Briggs,  p.  884;  Judge  Steele,  p.  1358.) 

In  one  instance  the  judge  certifies  to  a  copy  of  a  poll-list,  and  swears 
to  it  as  if  produced  by  him  from  the  files  at  his  office,  when  it  was  never 
there  and  comes  into  the  evidence  from  other  sources.  (Eec,  pp.  822, 
854,  807-8.) 

None  of  the  registration  lists  furnished  the  inspectors  and  used  at  the 
polls  are  put  in  evidence.  None  of  the  registrars  are  called  as  witnesses 
to  see  whether  all  the  registration  lists  taken  at  the  polls  were  sent  into 
the  probate  offices  and  when,  or  how  many  were  registered  at  the  polls 
and  given  certificates.  It  does  not  appear  how  jmany  and  what  ones 
were  challenged  and  took  the  oath  prescribed,  and  then  voted,  as  the 
oaths  do  not  appear  to  be  in  the  probate  office. 

The  only  evidence  we  have  of  the  names  of  the  persons  who  voted  is 
in  the  shape  of  what  purport  to  be  certified  copies  of  poll-lists  found  in 
the  office  of  the  judges  of  probate.  How  they  came  there  or  when  de- 
posited does  not  appear,  save  as  a  i)resumption  of  fact.  It  was  the  duty 
of  the  inspectors  to  certify  and  sign  the  poll-lists  and  send  them  in  with 
the  returns,  and  they  are  required  to  be  left  and  kept  at  the  probate 
office.  An  inspection  of  the  copies  produced  shows  that  most  of  them 
do  not  contain  the  certificate  of  the  inspectors  as  required  by  law,  and 
they  h^ve  no  verification  or  identification  therefore  as  genuine  poll-lists, 
and  cannot  be  regarded  as  proof.  In  some  cases  a  presumption  of  fact 
may  do;  but  on  a  controverted  issue  like  this  that  presumption  is  of 
1  jght  weight. 

In  the  three  precincts  of  Limestone  County  embraced  in  the  claim 
there  are  no  poll-lists  which  appear  to  have  been  returned  at  all.  Con- 
testee  has  put  in  evidence  three  papers,  sworn  to  by  one  of  the  inspect- 
ors, iii  each  case  as  the  poll-list,  and  purporting  to  be  signed  by  the  three 
inspectors.  But  as  they  never  sent  them  to  the  probate  office,  as  re- 
quired by  law,  and  no  reason  or  explanation  for  the  omission  is  giveu, 
we  do  not  regard  them  as  proof  or  as  worthy  of  credit.  The  conduct  of 
these  inspectors  is  the  subject  of  grave  distrust,  and  the  alleged  discrep- 
ancies so  great  that  the  rejection  of  this  evidence  is  fully  warranted. 
There  is  a  strong  probability  at  least  that  there  was  fraud  and  manipu- 
lation on  the  part  of  the  single  inspectors  respectively  who  produced 
the  lists.  Neither  one  of  them  is  supported  by  the  evidence,  or  even 
proof  of  the  signatures  of  the  other  inspectors,  as  they  are  not  examined 
as  witnesses.  They  knew  the  law  requiring  the  inspectors  to  verify 
the  poll-lists,  and  must  be  presumed  to  know  also  that  they  were  re- 
quired to  send  them  in  with  the  returns.  If  they  purposely  withheld 
the  poll-lists  (and  they  do  not  preteud  to  the  contrary)  it  may  safely  be 
assumed  to  have  been  for  some  fraudulent  purpose.  If  they  are  guilty 
of  fraud  in  that  resi^ect  they  would  not  be  likely  to  stop  short  of  most  any- 
thing else.  Contestee  called  witnesses  to  testify  that  they  had  examined 
the  copies  of  registration  list  produced  and  the  poll-lists  referred  to,  and 
give  lists  of  names  which  they  find  on  the  poll-lists  and  not  on  the  regis- 


k 


LOWE    VS.    WHEELER,  95 

tration  lists.  I  have  compared  the  same  papers  to  a  considerable  ex- 
tent, and  am  enabled  to  say  that  these  witnesses  have  testified  with 
great  recklessness,  to  say  the  least.  I  have  gone  over  the  list  of  names 
(given  as  not  registered)  in  several  instances.  Besides  some  name* 
which  are  on  the  registration  lists  in  full,  we  find  many  which  differ 
only  in  some  particulars,  there  being  such  a  correspondence  as  to  indi- 
cate that  they  relate  to  one  and  the  same  person.  In  many  cases  the 
differences  are  very  slight.  The  clerks  at  the  polls  manifestly  wrote  in 
great  haste  and  carelessly,  not  getting  or  hearing  the  name  as  pro- 
nounced with  any  accuracy.  For  instance,  ''Henry  Stokes"  is  on  the 
registration  list  and  "Henry  Stocks"  is  written  on  the  poll-list.  The- 
surname  ','Quades"  is  written  "Quarrels,"  while  the  initials  are  the 
same.  (See  illustrations,  Rec,  p.  1043-1045,  509,  515,  820,  819,  1358- 
1359.)  And  yet  these  persons  are  claimed  and  sworn  to  as  among  the 
non-registered. 

The  instances  of  this  nature  are  so  numerous  and  marked,  among^ 
other  evidences  of  haste  and  inaccuracy,  if  not  that  they  have  been  ma- 
nipulated and  gotten  into  the  probate  court  fraudulently  in  place  of  the 
genuine,  as  to  render  the  poll-lists  unreliable  for  simple  comparison. 

Besides  this  it  is  in  proof  that  negroes  go  by  different  names,  and 
often  change  their  names,  and  that  this  is  done  by  them  generally  and 
as  a  class,  and  that  their  residences  are  not  always  fixed  and  permanent, 
but  they  often  change  them.  They  may  have  registered  in  one  precinct 
or  county,  and  then  moved  into  another,  and  remained  long  enough  to 
get  a  right  to  vote  there  without  getting  on  to  a  new  register,  while  the 
constitution  requires  them  to  be  only  once  registered  in  order  to  be  al- 
lowed to  vote.  Some  instances  appear  casually  in  the  evidence  where 
8uch  produced  certificates  of  registry  from  other  precincts  and  counties 
show  tbeir  right  to  vote. 

It  would  seem  that  registration  lists  were  not  sent  to  the  probate 
court  in  some  instances;  that  one  whole  volume  was  lost  in  Madison 
County,  and  some  lists  in  Jackson  County;  that  poll- lists  were  not  re- 
turned in  many  cases  as  required  by  law ;  and  it  is  quite  probable  that 
more  lists  than  are  proved  have  been  mislaid  or  lost.  It  is  more  prob- 
able that  this  is  so  than  it  is  that  so  many  persons  not  registered  should 
vote  and  be  allowed  to  vote  fraudulently^  and  without  challenge.  As 
electors  could  be  registered  at  the  polls,  if  not  registered  prior,  and  get 
certificates  so  easily,  and  if  registered  elsewhere  could  vote  by  taking 
the  prescribed  oath,  there  is  a  very  wide  field  of  probability  to  explain 
the  discrepancies  alleged  between  any  particular  registration  list  and 
poll-list  produced.  There  are  a  very  few  instances  where  both  the  reg- 
istration lists  and  the  poll-lists  of  the  same  precinct  are  proved  and  ap- 
pear to  be  regular  and  complete.  And  in  these  the  things  suggested 
would  and  do  explain  the  alleged  want  of  identity  in  the  names  as  written. 

Unless  the  explanations  suggested  avail,  it  is  apparent  that  large 
numbers  on  the  registration  lists  did  not  vote  at  all,  which  is  quite  im- 
probable in  an  election  exciting  so  much  interest  and  so  hotly  contested. 

There  is  no  list  furnished  which  indicates  or  shows  revisions  made  be- 
cause of  deaths,  removals,  and  disabilities.  And  we  don't  know  how 
many  may  have  been  stricken  off  by  mistake  or  wrongfully,  or  how 
many  had  once  removed  after  being  registered  and  afterwards  returned 
without  their  names  being  restored  by  the  assistant  registrar,  whose 
duty  alone  it  was  to  do  it.  I  have  already  adverted  to  the  fact  that  be- 
ing registered  once  in  the  State  seems  to  answer  the  constitutional  pro- 
vision, ^o  fault  of  the  registrar  in  striking  a  name  off  or  in  omitting 
to  restore  it  can  deprive  the  voter  of  his  right  to  vote  if  once  registered. 


S6  DIGEST    OF    ELECTION    CASES. 

To  go  into  full  details  would  occupy  too  much  space.  I  will  refer 
to  only  a  few  in  addition  to  what  has  been  already  said. 

In  Limestone  County  the  registration  lists  purporting  to  be  furnished 
are  manifestly  not  copies  of  original  registration  lists,  but  of  some  pre- 
pared for  the  occasion  or  taken  loosely  from  some  list  or  source  not  ap- 
pearing. The  poll-lists  furnished  in  copy  do  not  come  from  the  probate 
<;ourt,  but  from  one  inspector  by  deposition,  each  one  a  delinquent, 
and  a  violator  of  law  and  duty,  without  excuse  or  explanation  shown, 
and  subject  to  the  gravest  suspicious  as  to  their  motives  in  withholding 
the  poll  lists  from  the  retumis  made  after  elections.  These  three  pre- 
oincts  alone  involve  344  alleged  illegal  votes. 

Registrar  Martin,  page  814,  swears  to  loss  of  registration  list  of  145 
names. 

In  Florence  precinct,  while  it  is  claimed  that  there  were  280  non-reg- 
istered voters,  a  challenger  was  present,  who  challenged  vigorously  over 
100  electors  for  other  reasons,  but  not  one  as  not  registered.  (Deposi- 
tion of  Jones,  881.)  In  Triana  precinct  275  non-registered  are  claimed 
out  of  a  vote  of  only  about  412  voters.^  Eegistration  book  No.  1,  certi- 
fied to  as  lost  or  mislaid,  may  account  for  this.  Poll-list  not  signed  by 
inspectors.  As  two  witnesses  were  examined  by  coutestee  as  to  this 
poll,  and  were  present  challenging,  it  would  have  been  well  to  have  had 
a  copy  of  the  registration  which  was  at  the  poll  on  the  day  of  election 
to  see  whether  the  names  were  not  in  fact  on  that.  We  have  got  neither 
this  nor  any  revised  lists  made  by  the  registrars  at  any  time  since  1875. 

They  must  now  be  presumed  to  have  been  on,  and  that  there  is  some 
mistake  about  the  copies  furnished  by  the  judge  or  purporting  to  be. 

In  Lauderdale  County  it  appears  that  no  registration  book  as  required 
by  law  could  be  found.     (Rec,  p.  907.) 

In  Madison  County  only  one  of  two  poll-lists  are  duly  certified  aud 
verified  as  genuine. 

Names  are  pasted  on  in  printed  slips  instead  of  being  written,  as  the 
law  requires. 

Inasmuch  as  books  of  registration  were  not  made  and  kept  according 
to-  law,  but  it  was  found  on  loose  sheets,  the  lists  sent  to  each  precinct 
on  the  day  of  election  would  have  been  the  best  or  most  satisfactory 
evidence  of  who  were  registered,  aud  in  no  instance  have  we  got  them. 

All  of  the  evidence  has  been  Examined  upon  this  issue  of  non-regis- 
tration  with  an  anxious  desire  to  do  the  coutestee  and^  his  alleged  proof 
full  justice.  There  seems  to  have  been  wanting  on  his  part  no  amount 
of  industry  and  professional  skill  in  the  preparation  and  argument  ot 
his  case.  But  there  is  a  conspicuous  absence  of  evidence  needed  to 
establish  his  claim,  if  well  founded.  Even  the  judges  of  probate  have 
failed  to  give  such  oral  evidence  as  was  needed  to  make  the  proof  of 
registration  and  poll-lists  satisfactory  aud  complete.  Their  testimony 
is  more  significant  for  what  was  not  asked  in  questions  than  for  what  it 
contains,  especially  after  the  objections  thereto  made  and  indicated  at 
the  time.  There  is  also  a  total  failure  to  call  the  assistant  registrars  and 
the  inspectors  and  managers  of  elections,  and  to  produce  the  books  kept 
by  the  former,  and  the  lists  used  at  the  polls,  and  to  supply  what  is 
wanting  in  the  papers  produced  to  verify  the  same  as  all  and  accurate. 
They  had  been  attacked  by  contestant,  and  his  objection  to  the  proof 
indicated  in  many  respects.  Presumptions  of  regularity  and  full  dis- 
charge of  duty  in  the  respects  now  in  question  are  balanced  by  other 
presumptions  in  favor  of  contestant,  and  much  shaken,  if  not  entirely 
overthrown,  by  evidence  otherwise.  With  such  proof  as  appears  of 
looseness  and  irregularity  in  regard  to  the  registration  and  poll  lists, 


LOWE    VS.    WHEELER  97 

and  their  use,  with  no  evidence  from  the  electors  themselves,  or  the 
registrars  or  election  officers,  in  the  absence  of  the  lists  used  at  the 
polls,  and  upon  the  facts  already  shown  in  proof  and  already  indicated, 
a  comparison  between  the  alleged  lists  produced  fail  utterly  to  prove 
the  alleged  charges  of  the  contestee,  and  we  feel  constrained  to  find 
the  issue  against  him. 

We  are  aske<l  to  presume  that  all  registrars  did  their  duty,  that  judges 
of  probate  had  all  the  papers  which  the  law  provided  should  be  sent  to 
them,  that  the  poll-lists  not  signed  were  the  genuine  and  true  ones,  when 
they  could  be  so  easily  manipulated  without  complicity  on  the  part  of 
the  judges,  in  order  to  overcome  all  the  presumption  in  favor  of  the 
legality  of  the  votes  cast.  I  cannot  do  it  in  the  face  of  so  much  evidence 
as  appears  to  weaken  those  presumptions  invoked  by  contestee. 

There  is  another  consideration  which  ought  to  be  noted  as  a  very 
strong  reason  at  least  why  contestee  should  be  held  to  the  strictest 
rules  of  evidence,  if  not  as  justifying  the  claim  that  the  ballots  of 
voters  not  on  the  registration  lists  apparently  should  not  now  be  re- 
jected after  they  were  offered  and  deposited  without  challenge  or 
objection  at  the  time.  Under  the  law  of  Alabama,  as  already  stated, 
any  qualified  voter,  if  not  on  the  copy  of  registration  lists  with  the 
inspectors  conducting  the  poll,  and  challenged,  may  register  at  the  time 
and  on  the  spot,  or  take  the  requisite  oath  and  then  rightfully  vote. 
If  he  is  not  challenged,  and  is  allowed  to  vote  without  doing  this,  the 
failure  of  duty  on  the  part  of  the  registrar  or  inspectors  may  unjustly 
deprive  the  elector  of  his  vote.  .  The  case  would  perhaps  come  within 
the  spirit,  if  not  the  strict  letter,  of  section  2007  of  the  Revised  Statutes 
of  the  United  States. 

The  remarks  of  Mr.  Calkins  in  caseof  Curtin  v.  Yocum,  although  not 
in  all  respects  api)licable  to  this  case,  are  pertinent  and  forcible,  and 
we  quote  them : 

I  call  the  atteution  of  the  members  of  the  House  especially  to  the  conclusion  reached 
by  Judge  Brings  in  constrning  this  law.  He  says  :  "  By  accepting  the  vote,"  refer- 
ring to  the  non-registered  voter  who  presents  himself  at  the  polls  without  an  affidavit, 
&c. — "  by  accepting  the  vote  without  demanding  the  proof  they  deprive  the  voter  of 
the  opportunity  of  furnishing  it."  To  construe  the  law  as  contended  for  by  my  friend 
from  Pennsylvania  (Mr.  Beltzhoover)  makes  it  a  mere  trap,  for  the  reason  that  the 
voter  presumes,  or  he  has  a  right  to  presume,  that  he  is  registered.  He  has  lived  in 
the  precinct  the  time  required  by  law ;  he  has  paid  his  tax  ;  the  assessor  has  been  to 
his  house  ;  he  knows  his  name  ought  to  be  on  the  registry  list,  and  he  goes  iq)  to  the 
ballot-box  with  the  ballot  in  his  hand.  They  take  his  ballot  and  deposit  it  in  the 
ballot-box,  and  afterward,  when  he  cannot  furnish  the  proof,  it  is  contended  his  vote 
is  an  illegal  one,  while  if  the  election  officers  had  called  his  attention  to  it  at  the  mo- 
ment he  could  have  supplied  the  evidence  required  and  established  his  right  to  vote 
to  the  mode  prescribed.  But  that  evidence  was  not  demanded.  He  voted  knowing 
that  he  had  a  legal  right  to  vote,  but  the  legal  evidence  of  his  right  was  not  required 
of  him  by  tlie  election  officers.  And  applying  the  same  doctrine  as  in  AVheelock's  case, 
"  you  cannot  deprive  the  legal  voter  of  the  right  to  vote  by  reason  of  the  failure  of  the 
officer  to  do  his  duty,"  and  it  seems  to  me  that  the  position  is  ini  assailable. 

Regulations  may  be  merely  directory,  and  if  the  officer  of  election  or 
the  voter  does  not  follow  them  they  do  not  necessarily  vitiate  the  vote 
when  deposited  and  received. 

The  present  case  is  a  very  strong  one  for  the  application  of  that  rule, 
in  the  absence  of  any  statute  making  registration  a  prerequisite,  and 
where  the  system  of  registration  is  so  imperfect  and  loosely  managed. 

In  the  record  there  apj^ears  to  have  been  sundry  rulings  of  the  mag- 
istrate as  to  admission  of  evidence,  &c.,  to  which  exceptions  were  taken. 
The  course  pursued  in  this  respect  was  manifestly  irregular.  But  this 
becomes  now  immaterial  and  unimportant.  The  various  motions  made 
H.  Mis.  35 7 


98  DIGEST    OF    ELECTION    CASES. 

by  the  respective  parties  as  to  striking  out  evidence  have  been  con- 
sidered and  denied  either  as  immaterial  or  not  well  grounded. 

The  alleged  want  of  proper  certification  to  the  depositions  taken  by 
Eobert  W.  Figg  has  been  rectified  by  his  aflfidavit  and  further  certifi- 
cate by  way  of  amendment, 

I  have  paid  no  attention  to  attempted  personal  imx)utation  upon  par- 
ties and  counsel  not  affecting  the  evidence. 

My  opinion,  therefore,  is  that  contestant  was  elected  and  should  have 
the  seat,  and  I  approve  of  the  resolutions  attached  to  the  report  of  Mr. 
Hazelton,  while  I  dissent  from  some  of  the  views  embodied  in  that 
report. 


WILLIAM  M.  LOWE  vs.  JOSEPH  WHEELER. 
EIGHTH  CONGRESSIONAL  DISTRICT  OF  ALABAMA. 

Mr.  Beltzhoover,  from  the  Committee  on  Elections,  submitted  <he 

following  as  the 

VIEWS    OF    THE    MINORITY: 

The  undersigned  are  notable  to  concur  in  the  report  of  the  majority  of 
the  committee.  The  evidence  shows  that  the  election  was  conducted 
with  perfect  fairness  on  the  part  of  Wheeler  and  his  supporters.  Indeed, 
there  is  no  pretense  that  there  was  unfairness  anywhere  except  at 
Meridianville  and  Lanier's  precinct,  and  the  most  extraordinary  efforts 
on  the  part  of  Mr.  Lowe  and  his  attorneys  utterly  fail  to  prove  any  fraud 
or  unfairness  at  these  boxes. 

The  voluminous  character  of  the  record  has  precluded  nearly  all  the 
members  of  the  committee  from  giving  it  that  thorough  examination 
which  is  necessary  to  a  perfect  understanding  of  the  case,  and,  as  a 
consequence,  the  report  of  the  majority  contains  errors,  to  a  few  of 
which  we  will  refer : 

1st. 

The  majority  consider  evidence  introduced  by  Mr.  Lowe  which  pur- 
ports to  prove  matters  which  are  not  set  up  in  the  notice  of  contest^ 
and  refuse  to  consider  evidence  of  matters  proven  by  primary  and  un- 
controverted  evidence  which  are  specifically  set  up  and  insisted  upon 
in  the  answer  of  the  contestee,  these  matters  being  such  as  the  law  re- 
quired them  to  consider,  and  such  as  the  majority  of  the  committee  have 
considered  in  other  cases  during  this  term  of  Congress. 

2d. 

Evidence  which  the  majority  in  this  report  say  is  good  and  suflScient 
to  establish  the  allegations  of  Mr.  Lowe  they  in  the  same  rej)ort  say  is 
insufficient  to  support  the  allegations  of  Mr.  Wheeler. 

3d. 

Certain  witnesses  give  evidence  regarding  votes  cast  for  both  Mr.  Lowe 
and  Mr.  Wheeler. 
The  evidence  is  precisely  of  the  same  character,  the  votes  referred  t 


LOWE    VS.    WHEELER.  99 

are  precisely  of  the  same  class,  the  evidence  is  given  by  the  same  wit- 
nesses, and  in  some  cases  it  is  given  in  the  same  breath  and  in  answer 
to  the  same  questions,  and  yet  the  majority  of  the  committee  count  the 
votes  for  Mr.  Lovre  and  refuse  to  count  the  votes  which  the  proof  shows 
were  cast  for  Mr.  Wheeler. 

Worse  than  that,  the  report  of  the  majority  counts  votes  for  Mr.  Lowe 
upon  statements  of  witnesses  who  swear  they  do  not  know  anything  ot 
it  personally,  and  they  refuse  to  count  votes  for  Mr.'  Wheeler  the  rejec- 
tion of  which  is  positively  proven. 

For  instance  :  Mr.  Harraway  swears  he  does  not  know  personally  that 
any  Lowe  ballots  were  rejected,  but  he  swears  that  he  does  know  that 
a  Wheeler  ballot  was  rejected. 

On  this  e\'idence  the  majority  count  4  votes  for  Mr.-  Lowe  and  refuse 
to  count  any  votes  for  Mr.  Wheeler. 

Mr.  Hill,  who  was  illegally  examined  in  chief  during  the  last  ten  days,, 
when  the  law  only  allowed  evidence  in  rebuttal,  testified  and  admitted 
that  his  knowledge  that  22  Lowe  ballots  were  rejected  teas  not  based 
upon  his  actual  knoicledge,  hut  iticas  based  pretty  much  upon  what  a  clerk 
told  him.  This  illegal  evidence  was  taken  at  an  unlawful  time,  so  that 
Mr.  Wheeler  could  not  take  evidence  to  refute  it,  and  yet  the  majority,, 
on  such  evidence,  count  22  votes  for  Mr.  Lowe. 

We  observe  six  other  instances  where  Mr.  Lowe's  witnesses  testify 
that  ballots  cast  for  Mr.  Wheeler  were  not  counted,  and  yet  the  major- 
ity of  the  committee  refuse  to  give  Mr.  Wheeler  the  benefit  of  their  evi- 
dence, although  their  evidence  is  precisely  the  same  as  the  best  evi- 
dence which  is  relied  upon  by  Mr.  Lowe,  and  although  in  one  instance 
alone  this  failure  makes  a  loss  of  over  50  votes  to  Mr.  Wheeler. 

4th. 

The  majority  of  the  committee  accept  and  consider  in  substantiation 
of  Mr.  Lowe's  allegations  testimony  which  is  secondary  in  its  character, 
which  is  contradicted  by  Mr.  Lowe's  own  witnesses,  and  which  uncon- 
tradicted proof  shows  has  been  altered  and  forged  since  it  went  into 
the  hands  of  Mr.  Lowe's  agents  or  attorneys.  Mr.  Wheeler  made  a 
projier  and  seasonable  motion  to  have  the  forged  evidence  stricken  from 
the  record,  but  the  majority  of  the  committee  failed  to  strike  said  forged 
matter  from  the  record. 

5th. 

The  majority  of  the  committee  refused  or  failed  to  deduct  votes  of 
unregistered  voters  who  illegally  voted  for  Mr.  Lowe,  giving  two  rea- 
sons therefor : 

1.  Because  they  say  registration  is  not  required  in  Alabama. 

2.  Because  there  is  no  evidence  which  establishes  definitely  and  iden- 
tically for  whom  they  voted. 

The  first  position  was  so  unteiiable  that  it  was  not  assented  to  by  all 
the  members  of  the  committee  who  voted  for  the  majority  report ;  and 
we  hereafter  will  show  it  to  be  entirely  without  foundation. 

The  second  position  is  positively  contradicted  by  the  proofs.  In  the 
limited  examination  we  have  been  able  to  give  to  this  point  we  find  the 
names  of  over  500  of  these  unregistered  voters  who  the  witnesses 
swear  positively  voted  for  William  M.  Lowe.  Some  of  this  evidence  is 
given  by  Mr.  Lowe's  witnesses,  and  by  Republicans  who  swear  that 
they  saw  the  voters  hand  their  ballots  to  the  inspectors  with  Mr.  Lowe's 
name  on  said  ballots. 


100  DIGEST    OF    ELECTION    CASES. 

This  evidence  is  positive,  UDimpeacbed,  and  unquestioned. 

6th. 

The  majority  of  the  committee  refused  or  failed  to  deduct  illegal 
votes  of  unregistered  voters  who  voted  for  Mr.  Lowe  at  Courtland  and 
other  precincts,  where  the  proof  shows  there  was  no  person  registered 
f  as  required  by  laic,^^  and  consequently  there  was  no  legal  registration, 
and  Mr.  Kanney,  of  the  committee,  gives  as  a  reason  for  this  action, 
^nd  it  is  the  only  reason  given,  that  "  contestee  does  not  set  up  a  want 
-of  legal  registration  as  vitiating  the  election  at  any  precinct." 

In  making  this  statement  Mr.  Eanney  was  mistaken. 

The  following  allegations  are  contained  in  the  answer  of  the  con- 
i;estee : 

Contestee  alleges  that  at  the  following  precincts  of  Lawrence  County,  viz,  Court- 
land,  Red  Bank,  &c.,  *  *  *  450  persons  were  allowed  to  vote,  and  did  vote,  for 
•contestant,  some  of  whom  had  no  right  to  vote  at  the  precincts  where  they  cast  their 
votes,  and  others  who  voted  at  said  precincts  were  not  legal  voters,  and  had  no  right 
to  vote  at  all. 

And  contestee  also  alleges  that  said  persons  who  voted  for  contestant 
^t  said  precincts  "  did  not  have  a  right  to  vote,  for  the  reason  that 
they  had  never  been  registered  as  required  by  lawy 

It  is  here  shown  that  the  allegations  of  Mr.  Wheeler  emphatically 
state  there  was  no  legal  registration  at  Courtland  or  that  he  uses  the 
equivalent  words  that  the  persons  who  voted  for  contestant  had  '■'■not 
.been  registered  as  required  by  laic." 

The  deposition  of  the  probate  judge  of  Lawrence  County  proves  that 
these  allegations  are  correct,  and  that  there  was  no  legal  registration 
at  that  precinct. 

Under  a  similar  registration  law  the  majority  of  this  Committee  on 
Elections  decided  in  the  case  of  Bisbee  vs.  Finley  that  eight  precincts 
in  Brevard  County  should  be  rejected,  and  the  proof  in  that  case  does 
not  show  that  the  registration  in  those  precincts  was  as  incomplete  and 
illegal  as  it  is  shown  in  this  case  to  have  been  at  the  precinct  of  Court- 
land. 

It  is  shown  by  primary  evidence  that  none  of  the  voters  at  Courtland 
were  registered  as  required  by  law,  and  that  with  regard  to  189  of  tbem 
there  was  no  pretense  at  registration,  and  yet  the  majority  count  these 
illegal  votes  for  Mr.  Lowe. 

7th. 

The  majority  of  the  committee  refused  or  failed  to  deduct  the  illegal 
votes  of  non-resident  persons  who  voted  for  Mr.  Lowe,  although  the 
proof  is  positive  and  uncontradicted  that  such  persons  voted  for  Mr. 
Lowe,  and  that  they  were  not  residents  of  Alabama,  but  residents  of 
other  States. 

The  witnesses  give  evidence  regarding  this  matter  similar  to  the 
following : 

John  Wilson  was  not  a  resident  of  Alahama ;  he  lives  in  Tennessee,  and  he  never 
pretended  to  claim  this  as  his  home. 

Wesley  Phillips  was  a  non-resident  of  the  State  of  Alabama;  he  lives  in  Tennessee. 

Squire  Holsten  was  a  non-resident  of  the  State  of  Alabama;  he  lives  in  Georgia, 
and  is  an  illegal  voter. 

John  O'Neal  was  a  non-resident  of  the  State  of  Alabama ;  claims  his  home  in 
Georgia. 

Berry  Blair  was  a  non-resident  of  the  State  of  Alabama ;  lives  in  Tennessee ;  was 
an  illegal  voter. 


LOWE    VS.    WHEELER.  101 

The  witnesses  also  testified  that  all  the  non-residents  whose  names 
they  gave  voted  for  William  M.  Lowe,  and  all  these  names  are  found  on 
the  poll-lists. 

We  could  go  on  with  these  details,  but  space  forbids. 

It  is  evidence  of  this  character  which  the  majority  of  the  committee 
says  is  "  not  sufficient.''^ 

They  also  say:  '■'•His  [Wheeler]  proofs  do  not  sustain  his  allegations^ 

It  appears  to  us  that  Mr.  Wheeler  proved  conclusively  that  minors 
voted  for  Mr.  Lowe. 

Mr.  Lewis  swears  that  Jack  L.  Armestead  A'oted  for  Mr.  Lowe ;  that 
he  had  known  him  for  ten  years,  and  when  he  first  knew  him  he  was 
not  more  than  six  or  seven  years  old.  He  also  swears  that  Berry  Conger 
voted  for  Lowe ;  that  he  had  known  him  for  twelve  years,  and  when  he 
first  knew  him  he  was  not  more  than  six  years  old. 

On  page  894  of  the  record  contestee  proved  that  James  Chandler  was 
only  eighteen  years  old.  Also,  page  899,  that  Robert  Smith  was  only 
twenty  years  old,  and  that  Ephraim  Springer  was  only  twenty  years 
old.     All  of  these  persons  the  proof  shows  voted  for  Mr.  Lowe. 

This  is  the  character  of  the  uncontradicted  evidence  which  Mr.  Wheeler 
])roduces  to  show  that  minors  voted  for  William  M.  Lowe. 

8th. 

At  Courtland  precinct  (the  same  place  where  the  proof  shows  that 
there  was  no  legal  registration,  and  that  180  unregistered  persons  cast 
illegal  votes  for  William  M.  Lowe)  the  preponderance  of  evidence  de- 
cidedly shows  that  none  of  the  inspectors  were  supporters  of  the  party 
which  sustained  Mr.  Wheeler,  and  Mr.  Lowe's  witnesses  are  compelled 
reluctantly  to  admit  that  they  violated  the  law  which  required  them  to 
count  the  ballots  immediately  on  the  closing  of  the  polls,  and  that  they 
pretended  to  be  occupied  for  nine  hours  in  counting  about  500  ballots, 
and  then  put  the  counted  and  uncounted  ballots  together  in  a  rough 
box,  and  that  one  of  their  number  took  the  box  off  and  kept  it  until 
the  next  day,  when  a  box  was  returned  which  contained  some  ballots 
which  they  counted  in  an  illegal  manner,  and  made  a  report  that  Mr. 
Lowe  had  received  419  votes  and  that  Mr.  Wheeler  had  received  111 
votes. 

The  proof  also  shows  that  this  report  was  false,  as  the  witnesses 
admit  that  Mr.  Wheeler  was  polling  a  large  vote — quite  as  large  as  that 
polled  by  Mr.  Lowe — and  some  of  the  witnesses  testified  that  he  (Wheeler) 
polled  two  or  three  times  as  many  votes  as  were  counted  for  him. 

Mr.  Wheeler  has  proven,  by  uncontradicted  and  uncontroverted  evi- 
dence of  Republicans  as  well  as  Democrats,  that  over  200  persons  voted 
for  him  at  that  box. 

Mr.  Wheeler's  allegation  with  regard  to  this  poll  conforms  to  the- 
proof,  and  we  conclude  that  the  box  should  not  be  counted. 

We  respectfully  submit  that  we  have  never  seen  a  case  where  the 
integrity  of  a  ballot-box  was  more  emphatically  and  essentially  im- 
peached, and  where  justice  called  louder  for  action. 

9th. 

On  the  other  hand,  we  now  look  at  the  action  of  the  majority  of  the 
miuiittee  regarding  Meridianville  box  'No.  2. 

Mr.  Lowe  m  his  notice  does  not  ask  to  have  this  box  rejected,  and 
lerefore  under  the  rules  laid  down  by  the  committee  regarding  Wheel- 


102  DIGEST    OF    ELECTION    CASES. 

el's  defense  they  could  not  reject  it;' but  above  and  beyond  this  the  proof 
shows  that  there  was  no  violation  of  law  at  this  box. 

Mr.  Forbes,  Mr.  Lowe's  special  friend,  was  present  as  supervisor,  the 
votes  were  counted  strictly  as  provided  by  law,  and  the  supervisor  and 
the  inspectors  made  their  respective  reports,  each  stating  that  Wheeler 
received  57  and  Lowe  received  47  votes. 

The  proof  shows  that  this  vote  was  proportioned  substantially  the 
same  as  it  was  at  the  election  three  months  previous,  when  the  vote  for 
governor  was:  Cobb,  Democrat,  42;  Pickens,  Opposition,  34. 

The  testimony  of  Mr.  Trewhitt,  Mr.  Koper,  and  Mr.  Hawk,  who  were 
officers  of  the  election  which  we  are  now  considering,  and  whom  the  proof 
shows  to  be  gentlemen  of  high  standing,  shows  that  the  vote  was  counted 
as  it  was  cast,  and  that  no  fraud  could  possibly  have  been  practiced  at 
these  polls. 

The  majority  of  the  committee  cite  against  the  sworn  report  of  of- 
ficers, and  against  the  evidence  of  men  of  high  standing  and  character, 
the  testimony  of  two  colored  men,  of  whom  one  is  impeached  by  the  di- 
rect testimony  that  his  character  is  so  bad  that  he  is  not  worthy  of  belief 
under  oath,  and  both  are  impeached  by  their  own  contradictions  and  by 
credible  testimony  of  other  witnesses.  But  in  addition  to  all  this  the 
evidence  of  the  contestant  is  not  of  a  character  to  justify  the  committee 
in  receiving  it  to  prove  that  there  was  any  fraud  or  unfairness  at  this 
box,  and  taking  all  the  proof  together  it  shows  no  ground  for  its  re- 
jection. 

The  record  also  shows  that  during  the  ten  days  allowed  by  law  for 
evidence  to  be  taken  for  contestant  in  rebuttal  Mr.  Lowe's  attorneys 
served  a  false  notice  upon  Mr.  Wheeler,  stating  they  would  take  evi- 
dence of  some  fifty-five  witnesses  at  or  near  Pleasant  Hill. 

This  notice  designated  no  definite  place,  and  Mr.  Wheeler  caused  a 
demand  to  be  served  upon  them,  asking  for  more  specific  information 
regarding  the  locality  where  the  evidence  would  be  taken. 

This  polite  and  proper  request  was  not  complied  with. 

Mr.  Lowe's  attomej^s  went  to  a  place  seven  miles  from  Pleasant  Hill 
and  proceeded  to  take  evidence  ex  parte. 

After  some  twenty  witnesses  had  been  examined  in  this  way,  an  attor- 
ney emj)loyed  by  Mr.  Wheeler  succeeded  in  hunting  down  this  secret 
place  of  taking  evidence;  but  even  then,  after  finding  the  commis- 
sioner, he  was  positivelj"  refused  the  right  to  cross-examine  witnesses. 

Worse  than  that,  the  record  shows  that  Mr.  Lowe's  attorney  (a  nephew 
of  Mr.  Lowe)  wrote  down  the  evidence  himself,  and  wrote  it  falsely. 

By  such  methods  there  have  been  produced  55  depositions  which  pur- 
port to  show  that  55  men  voted  for  Mr.  Lowe. 

Upon  these  illegal  and  fraudulently  obtained  and  criminally  con- 
ducted proceedings  the  majority  of  the  committee  count  55  votes  for 
Mr.  Lowe. 

This  box  will  be  discussed  more  fully  hereafter. 

10th. 

At  Lanier's  box  the  evidence  shows  that  it  was  impossible  for  any 
fraud  to  have  been  practiced  by  any  one  in  the  interest  of  Mr.  Wheeler. 

Mr.  Lowe's  friend  swears  they  could  not  have  counted  the  ballots  in 
the  shop  where  the  election  was  held,  and  he  swears  that  he  "took  charge 
of  the  box,"  and  carried  it  to  the  store  of  Deputy  United  States  Marshal 
Lanier,  who  was  appointed  to  take  charge  of  the  election  by  Mr.  Lowe's 
friend  Marshal  Sloss. 


r 


LOWE    VS.    WHEELER.  103 

The  box  remained  locked  up  iu  the  side  room  of  Mr.  Lanier's  store 
for  about  an  hour,  and  Mr.  Lanier,  who  was  a  Republican,  swears  that 
no  one  could  possibly  have  had  access  to  it  while  it  was  there. 

The  majority  of  tlie  committee,  however,  reject  this  box,  without  a 
request  to  that  effect  in  the  contestant's  notice,  and  then,  still  without  a 
request,  and  without  a  particle  of  legal  evidence,  count  for  Mr.  Lowe 
J  28  votes,  and  give  Mr.  Wheeler  none,  although  132  votes  were  cast  and 
counted  for  him,  and  Mr.  Lowe's  own  witness  swears  that  some  30  votes 
were  cast  for  Mr.  Wheeler. 

We  call  attention  to  these  things  to  show  that  the  honorable  gentle- 
men who  compose  the  majority  of  the  committee  have  been  imposed 
upon  by  some  one,  as  we  feel  they  never  would  have  made  this  report 
bad  the  facts  been  understood  by  them. 

The  majority  of  the  committee  violate  all  precedent  in  counting  16 
votes  for  5lr.  Lowe  at  Kinlock  box. 

There  is  no  return  from  this  box,  and  there  is  no  way  of  learning, 
from  the  proof,  that  there  was  any  election  held  at  said  place. 

llTH. 

The  majority  of  the  committee  receive  and  consider  as  good  evidence 
papers  which  are  not  depositions. 

More  than  one  hundred  of  these  papers,  which  are  called  depositions, 
do  not  show  that  the  witnesses  were  sworn.  One  hundred  and  fifty  are 
without  any  pretense  to  a  certificate  of  a  commissioner,  and  several  of 
them  have  no  legal  signature.  Yet  upon  such  fugitive  papers  the  ma- 
jority of  the  committee  conclude  to  deprive  a  fellow-member  of  his  seat 
iu  Congress. 

The  record  shows  that  the  vote,  according  to  the  ofl&cial  returns,  was : 

For  Joseph  "SVheeler 12,808 

For  Wm.  M.  Lowe 12, 765 

Majority  for  Joseph  Wheeler 43 

Mr.  Wheeler's  election  is  contested  on  the  following  grounds : 

1.  The  contestant  claims  that  525  votes  were  cast  for  him,  which  he 
claims  were  illegally  excluded  from  the  canvass  by  the  inspectors  of 
election  in  fifteen  different  precincts,  as  follows : 

Big  Creek 7 

Chickasaw 8 

Courtlaud 65 

Danville 42 

Decatur 3 

Elkmont ^ 56 

Falkville 97 

Florence  4 

Green  Hill 22 

Ilnutsville 61 

Kash's 2 

Madison 33 

Meridiauville  (No.  1) 2 

Owen's  Cross  Roads 31 

Poplar  Ridge 41 

Russellville 51 

525 

2.  Although  the  contestant  does  not  demand  it  in  his  notice  of  con- 
test, the  ma,jority  of  the  committee  reject,  for  his  benefit,  the  returns 
of  Lanier  precinct,  in  Madison  County,  which  gave  the  contestant  57 


104  DIGEST    OF    ELECTION    CASES. 

and  the  coiitestee  142  Votes,  and  they  give  him  128  votes  alleged  to 
have  been  proven  by  the  depositions  of  witnesses,  the  result  being  to 
deprive  the  eontestee  of  142  votes  and  to  add  71  to  the  votes  of  the 
contestant. 

3.  Although  the  contestant  does  not  demand  it  in  his  notice  of  con- 
test, the  majority  of  the  committee  reject,  for  his  beuetit,  the  returns 
of  Meridianville  precinct  Xo.  2,  which  gave  the  contestant  47  and  the 
eontestee  57  votes,  and  the  majority  of  the  committee  give  him  55 
votes,  alleged  to  have  been  proven  by  the  testimony  of  witnesses,  the 
result  being  to  add  8  to  the  contestant's  votes  and  to  deprive  the  eon- 
testee of  57. 

4.  Although  the  contestant  does  not  demand  it  in  his  notice  of  con- 
test, the  majority  of  the  committee  gave  him  an  addition  of  10  to  the 
votes  officially  returned  for  him  from  the  precinct  of  Cave  Spring. 

5.  Although  the  allegation  in  the  notice  of  contest  does  not  justify  it^ 
and  although  Mr.  Lowe's  proof  on  the  point  is  secondary,  and  conflict- 
ing, and  contradictory,  and  although  the  proof  regarding  Mr.  Wheeler's 
votes  at  that  poll  are  precisely  the  same  as  the  proof  regarding  Mr. 
Lowe's  votes,  the  majority  of  the  committee  count  76  votes  for  Mr.  Lowe 
at  Flint  precinct,  and  they  refuse  to  count  any  votes  for  Mr.  Wheeler. 

The  returned  vote  being  changed  in  accordance  with  these  claims,  the 
following  is  presented  as  a  statement  of  the  result: 

Wm.  M.  Lowe 13,456 

Joseph  Wheeler 12,  (i09 

Majority  for  Wm.  M.  Lowe 847 

The  eontestee  denies  most  of  contestant's  allegations,  and  on  the  other 
hand  insists,  in  his  answer  to. the  notice  of  contest,  that  the  following 
votes  were  illegally  cast  for  the  contestant,  and  demands  their  rejection 
by  the  House  of  Representatives: 

1.  Ballots  illegal  in  form,  including  1,294  ballots  vrhich  are  printed  so  as  to  be 

read  as  plainly  on  the  back  as  on  the  face 3,  028 

2.  Votes  of  unregistered  persons,  exclusive  of  those  who  voted  at  Courtland  1,200 
3-  Votes  of  non-residents 81 

4.  Votes  of  convicts 20 

5.  Votes  of  minors 16 

Kinlock  box 16 

Courtland  box  No.  2  (contestant's  majority) 308 

4, 6G9 

The  eontestee,  accordingly,  gives  the  following  as  a  correct  statement 
of  the  result: 

Joseph  Wheeler 12,808 

Wm.  M.  Lowe 8,096 

Majority  for  Joseph  Wheeler 4,712 

Mr.  Wheeler  also  claims  that,  the  Greenbrier  box  which  gave  Mr. 
Lowe  a  majority  of  223,  and  Pleasant  Site  box  which  gave  Mr.  Lowe  13 
majority,  and  Frankfort  which  gave  Mr.  Lowe  a  majority  of  17,  should 
not  be  counted.  Mr.  Wheeler  alleges  that  the  polls  were  under  the 
control  of  Mr.  Lowe's  friends,  and  that  they  were  not  kept  open  as  re- 
quired by  law,  causing  loss  of  many  votes  to  eontestee;  and  also,  that 
at  Greenbrier  there  was  illegal  voting  for  Mr.  Lowe,  and  that  the  in- 
spectors destroyed  the  poll-lists,  and  by  other  means  violated  the  law 


LOWE    VS.    AYHEELER.  105 

SO  as  to  deprive  Mr.  Wheeler  of  the  means  of  proving  the  illegal  votes 
which  were  cast  at  that  box. 

Mr.  Wheeler  also  alleges  that  the  entire  vote  of  Madison  County^ 
which  gave  Mr.  Lowe  676  majority,  was  illegally  returned,  and  should 
be  rejected.  Mr.  Wheeler  also  alleges  that  Triana  box,  which  gave  Mr. 
Lowe  252  majority,  was  not  kept  open  as  required  by  law,  whereby  con- 
testee  lost  many  votes. 

The  several  claims  of  the  respective  parties  will  be  considered  in  their 
order. 

IL 

BALLOTS  ILLEGAL  IN  FORM. 

The  contestant's  claim  that  525  ballots  offered  for  him  in  a  form  de- 
scribed were  illegally  excluded  by  the  inspectors  of  election  is  met  by 
the  contestee  as  follows  : 

(1.)  The  contestee  insists  that  ballots  of  the  form  described  were  il- 
legal, and  ought  to  have  been  excluded  by  the  inspectors. 

(2.)  He  denies  that  any  such  ballots  were,  in  fact,  rejected,  and  asserts 
that  the  depositions  by  which  the  contestant  attempts  to  prove  their 
rejection  are  inadmissible,  because  they  were  not  certified  by  the  officer 
before  whom  they  purport  to  have  been  taken,  nor  reduced  to  writing 
in  his  presence. 

(3.)  He  sets  up  a  counter-claim,  to  the  effect  that  3,028  ballots  can- 
vassed for  the  contestant  were  illegal,  because  they  contained  the  des- 
ignations of  eight  offices  unknown  to  the  laws  of  Alabama,  and  that 
of  these  3,028  ballots,  1,294  were  illegal,  for  the  further  reason  that  they 
were  so  printed  that  their  contents  were  distinctly  visible  on  the  outside 
to  the  inspectors  and  bystanders  when  the  ballots  were  folded. 

(1.)  In  support  of  his  position  that  the  ballots  in  controversy  were  il- 
legal and  ought  to  have  been  rejected  the  contestee  urges  the  following: 
considerations : 

The  ballots  were  in  this  form : 

For  Electors  for  President  and  Vice-President: 

state  at  large. 

JAMES  M.  PICKENS. 
OLIVER  S.  BEERS. 

DISTRICT  ELECTORS. 

Ist  District— C.  C.  McCALL. 
2d  District— J.  B.  TOWNSEND. 
3(1  District— A.  B.  GRIFFIN. 
'     4th  District— HILLIARD  M.  JUDGE. 
5th  District^THEODORE  NUNN. 
6th  District— J.  B.  SHIELDS. 
7th  District— H.  R.  McCOY. 
8th  District— JAMES  H.  COWAN. 

FOR   CONGRESS— EIGHTH  DISTRICT. 

WILLIAM  M.  LOWE. 


106  DIGEST    OF    ELECTION   CASES. 

The  following  ballot  is  in  the  form  prescribed  by  the  laws  of  Alabama. 
It  is  similar  in  form  to  12,808  ballots  cast  for  the  contestee : 

For  Electors  for  President 

and  Vice-President  of 

the  United  States. 

GEORGE  TURNER. 

WILLARD  WARNER. 

LUl'HER  R.  SMITH. 

CHARLES  W.  BUCKLEY. 

JOHN  J.  MARTIN. 

BENJAMIN  S.  TURNER. 

DANIEL  P.  BOOTH. 

WINFIELD  S.  BIRD.   • 

NICHOLAS  S.  McAFEE. 

JAMES  S.  CLARK. 


For  Representative  in 
Congress  from  the  Eighth 
Congressional  District: 

JOSEPH  WHEELER. 

Two  of  the  offices  designated  on  the  illegal  ballots  are  offices  of  Presi- 
dential electors  for  the  State  at  large,  and  two  of  the  candidates  na;med 
are  candidates  for  those  offices.  Eight  of  the  offices  designated  are 
offices  of  district  electors  of  President  and  Vice-President,  for  eight 
<lifferent  districts  in  the  State;  and  eight  of  the  candidates  named  are 
candidates  for  those  offices. 

The  Alabama  statute  declares  that — 

The  ballot  must  be  a  plain  piece  of  white  paper,  without  any  figures,  marks,  rulings, 
■characters,  or  embellishments  thereon,  not  less  than  two  nor  more  than  two  and  one- 
half  inches  wide,  and  not  less  than  five  nor  more  than  seven  inches  long,  on  which 
must  be  written  or  printed,  or  partly  written  and  partly  printed,  only  the  nanie^  oj  the 
persons  for  whom  the  elector  intends  to  vote,  and  must  designate  the  office  for  which 
each  person  so  named  is  intended  by  him  to  be  chosen,  and  any  ballot  otherwise  than 
described  is  illegal  and  must  be  rejected. 

This  law  prescribes  four  distinct  requirements  for  the  ballot : 

(1.)  It  must  be  a  plain  piece  of  white  paper,  without  any  figures, 
marks,  rulings,  characters,  or  embellishments  thereon. 

(2.)  It  must  be  not  less  than  2  nor  more  than  2^  inches  wide,  and  not 
less  than  5  nor  more  than  7  inches  long. 

(3.)  It  must  contain  only  the  names  of  the  persons  voted  for  and  the 
designations  of  the  offices  for  which  they  are  "intended  to  be  chosen." 

(4.)  The  names  of  the  candidates  and  the  designations  of  the  offices 
are  to  be  written  or  printed,  or  partly  written  and  partly  printed. 

If  the  legislature  had  merely  prescribed  the  form  of  the  ballot,  without 
declaring  those  cast  in  any  other  form  to  be  illegal,  or  commanding  their 
rejection,  then,  of  course,  it  would  be  a  question  whether  the  require- 
ment of  the  statute,  that  the  ballot  must  contain  only  the  names  of 
the  candidates  and  the  designations  of  the  offices,  is  directory  or  nian- 
•datory.    And  to  the  decision  of  that  question  such  authorities  as  Mc- 


LOWE    VS.    WHEELER.  107 

Kenzie  v.  Braxton,  Smith,  19,  would  be  applicable.  But  when  the  law 
makes  a  ballot  not  cast  in  a  prescribed  form  illegal  and  requires  its  re- 
jection, there  is  no  place  for  the  question  whether  the  statute  is  manda- 
tory or  directory.  The  ballot  which  is  not  in  the  prescribed  form  is 
illegal,  and  mnst  he  rejected,  because  the  law  in  terms  declares  it  to  be 
illegal  and  commands  its  rejection. 

The  legislature  of  Alabama,  exercising  a  power  expressly  conferred 
by  the  Federal  Constitution,  had  prescribed  the  mode  of  choosing  Presi- 
dential electors  as  follows : 

On  the  day  prescribed  by  this  code  there  are  to  be  elected,  by  general  ticket,  a  num- 
ber of  electors  for  President  and  Vice-President  of  the  United  States  equal  to  the 
number  of  Senators  and  Representatives  in  Congress  to  which  this  State  is  entitled  at 
the  time  of  such  election. 

Under  this  statutory  provision  there  could  be  no  choice  of  "  district 
elector"  for  the  "  first  district,"  or  "  second  district,"  or  for  either  of  the 
other  eight  districts  designated.  The  ballots  in  question  each  contained 
the  designations  of  eight  different  offices  unknown  to  the  law  ;  that  is 
to  say,  the  offices  of  district  electors  for  the  eight  districts  of  the  State. 
They  were  deposited  in  the  ballot-boxes  in  violation  of  the  requirement 
of  the  statute  that  the  ballot  shall  contain  only  the  names  of  the  can- 
didates and  the  designations  of  the  offices. 

It  is  submitted,  as  an  incontrovertible  proposition,  that  this  statutory 
provision,  for  the  choice  of  Presidential  electors,  makes  the  office  of  each 
and  every  Presidential  elector  an  office  for  the  State  at  large,  and  that 
the  office  of  district  elector  is  unknown  to  the  law  of  Alabama.  It  is 
submitted,  as  a  second  incontrovertible  proposition,  that  the  ballots  in 
question  were  ballots  for  two  electors  from  the  State  at  large,  and  for 
eightdistrict  electors,  one  for  each  of  eight  districts,  if  these  two  propo- 
sitions are  correct,  so  also  must  be  the  conclusion  that  eight  of  the  offices 
designated  on  these  ballots  are  unknown  to  the  laws  of  the  State,  and 
that  the  designation  of  these  eight  offices  was  a  violation  of  that  re- 
quirement whi  ;h  excludes  from  the  face  of  the  ballot  everything  except 
the  names  of  the  candidates  and  the  designation  of  the  offices  voted  for, 
and  that,  therefore,  under  the  law,  it  was  the  duty  of  the  inspectors  to 
reject  these  ballots. 

This  would  be  all  different  in  the  State  of  Massachusetts.  For  the 
law  of  x\Iassa(!husetts  contains  a  provision  unknown  to  the  law  of  Ala- 
bama.    It  is  that — 

The  naniesof  all  the  electors  to  be  chosen  shall  be  written  on  each  ballot;  and  each 
ballot  shall  contain  the  name  of  at  least  one  inhabitant  of  each  Congressional  district 
into  which  the  commonwealth  shall  be  then  divided,  and  shall  designate  the  Congres- 
sional district  to  which  he  belongs.     (Pub.  Stat.  Mass.,  1882,  p.  90.) 

The  effect  of  this  statutory  enactment  is  that  two  of  the  Massachu 
setts  electors  are  chosen  from  the  State  at  large,  and  the  others,  although 
chosen  by  the  people  of  the  whole  State,  are  district  electors,  chosen  not 
from  the  State  at  large,  but  from  the  several  districts.  In  Massachu- 
selts  the  ballots  now  under  consideration  would  be  in  exact  conformity 
with  the  requirements  of  the  law;  and  a  Massachusetts  statute,  com- 
manding the  rejection  of  ballots  containing  designations  of  offices  un- 
known to  the  law,  would  not  affect  ballots  like  those  alleged  to  have 
been  rejected  in  this  case. 

For  precisely  the  same  reasons,  ballots  like  these  would  be  legal  in 
the  States  of  Iowa,  Tennessee,  Missouri,  Virginia,  and  North  Carolina. 

If,  then,  the  statutes  of  Mas.sachusetts,  Iowa,  Tennessee,  Missouri, 
Virginia,  and  North  Carolina  commanded  the  rejection  of  all  ballots 
not  fashioned  in  conformity  with  the  requirements  of  law,- they  would 


108  DIGEST    OF 'election    CASES. 

not  affect  ballots  like  those  alleged  to  have  been  rejected  in  the  late 
election  in  Alabama,  because  such  ballots  would  conform  to  the  statu- 
tory requirements  of  those  States. 

The  laws  of  Illinois,  New  York,  South  Carolina,  ^Michigan,  and  Wis- 
consin, like  ttiat  of  Alabama,  provide  that  the  Presidential  electors 
shall  be  chosen  by  ''general  ticket."  The  statutes  of  Mississippi  and 
Nebraska  provide  that  they  shall  be  chosen  from  the  *' State  at  large.'^ 
If  the  laws  of  these  seven  States  provided,  as  do  the  laws  of  Alabama, 
that  all  ballots  containing  anything  beyond  the  names  of  the  candidates 
and  the  designations  of  the  offices  should  be  rejected,  then  ballots  like 
those  alleged  to  have  been  rejected,  in  the  case  now  under  considera- 
tion, would  necessarily  be  rejected  in  those  States.  But  no  law,  in 
either  of  those  seven  States,  requires  the  rejection  of  ballots  for  the 
reason  that  they  contain  more  than  the  names  of  the  candidates  and 
the  designations  of  the  offices.  It  follows,  therefore,  that  in  these  seven 
States,  as  well  as  in  the  States  of  Massachusetts,  Iowa,  Tennessee,  Mis- 
souri, and  Virginia,  these  rejected  Alabama  ballots  would  have  been 
good. 

They  would  also  have  been  good  in  all  the  other  States  of  the  Union 
except  Alabama.  For  in  none  of  the  other  States  is  there  any  statute 
requiring  the  Presidential  electors  to  be  chosen  by  general  ticket  or 
from  the  State  at  large.  In  all  the  other  States  the  statutes  provide  that 
Presidential  electors  shall  be  chosen,  but  fail  to  determine  whether  they 
are  to  be  chosen  whollj'  from  the  State  at  large,  or  partly  from  electoral 
districts.  They  do  not  make  illegal  the  offices  of  district  electors,  as  does 
the  law  of  Alabama.  The  case  of  Alabama  therefore  stands  upon  stat- 
utes peculiar  to  that  State. 

It  is  said  that  the  objectionable  matter  on  these  ballots  does  not  con- 
stitute figures,  marks,  rulings,  characters,  or  embellishments,  in  the 
sense  of  the  statute.  Even  if  this  be  admitted  for  the  sake  of  the  argu- 
ment, it  does  not  meet  the  objection  now  under  consideration,  which 
is  not  that  they  were  fashioned  in  violation  of  the  clause  of  the  statute 
prohibiting  figures,  marks,  rulings,  characters,  and  embellishments,  but 
that  they  presented  a  violation  of  that  clause  which  provides  that  the 
ballot  shall  contain  only  the  names  of  the  candidates  and  the  designa- 
tions of  the  offices. 

But  to  ascertain  whether  these  ballots  did  have  distinguishing  marks^ 
let  us  refer  to  the  evidence  of  the  witnesses  whom  the  contestant  intro- 
duced, and  by  whom  he  claims  to  have  proven  the  rejection  of  these 
ballots. 

Mr.  Hopkins,  a  witness  for  the  contestant,  testifies  (see  bottom  of 
page  131  and  top  of  page  132)  that  the  ballots  which  he  says  were  re- 
jected could  be  identified  from  the  outside  when  folded  four  times. 

His  evidence  is  as  follows: 

Q.  When  folded  in  four  thicknesses,  conld  you  see  at  a  distance  of  three  feet  that 
that  ticket  had  something  on  it  besides  the  names  of  the  persons  voted  for  and  the 
offices  for  which  they  were  to  be  chosen  ? — A.  Yes,  sir;  I  could.  ^ 

Q.  Please  examine  the  ticket  and  see  if  it  is  the  ticket  that  you  made  an  exhibit  to 
your  deposition. — A.  Yes,  sir;  it  is. 

.  Q.  Please  examine  those  three  tickets  folded,  and  say  if  they  are  not  the  kind  of 
tickets  that  were  rejected,  and  say  if  you  cannot  identify^  them  from  the  outside  when 
folded  four  times  ? — A.  These  tickets  are  similar  to  the  tickets  that  were  rejected  for 
being  numbered,  and  I  can  designate  them  when  the  printing  is  folded  inside  and  the 
ticket  folded  in  four  thicknesses. 

These  ballots  are  in  evidence,  and  it  will  be  observed  that  they  are  of 

the  least  objectionable  class  of  Greenback  ballots  found  in  the  record. 

Ira  G.  Wood,  a  witness  and  supporter  of  Mr.  Lowe,  and  an  officer  of 


LOWE    VS.    WHEELER.  109 

the  election,  testifies  as  follows  regaidiDg  the  ballots  which  he  says 
were  rejected  (see  Record,  page  304,  near  bottom): 

Q.  Your  eyesight  is  a  little  defective  and  iufirni  without  your  glasses  f — A.  Yes,  sir ; 
I  can  read  large  print ;  I  do  not  do  it.  however,  without  my  spectacles,  but  I  can. 

Q.  Can  you  see  the  words  tirst  district  on  that  ticket  (handing  witness  a  ticket)  ?^A. 
Y'es,  sir. 

Q.  Can  you  see  the  words  first  district  on  it  ? — A.  Yes,  sir. 

Q.  Can  yon  see  the  words  first  district  on  the  back  when  folded  with  the  printing 
inside  ?— rA.  Well,  I  wouldn't  know  that  unless  uiy  attention  was  called  to  it. 

Q.  Could  you  read  it  if  your  attention  was  called  to  it? — A.  I  suppose  I  could  if 
my  attention  was  called  to  it. 

Q.  Can  you,  when  the  ticket  is  open,  read  the  words  first  district  without  your 
glasses  ? — A.  Yes,  sir. 

Q.  When  the  ticket  is  closed  now,  with  the  printing  inside,  can  you  see  Ijy  reading 
backwards,  when  your  attention  is  called  to  it,  the  words  first  district ;  wouldn't  you 
be  willing  to  swear  there  was  a  D  ? — A.   Yes  sir. 

If  feeble  old  men  could  identify  the  ballots,  wheu  folded,  which  Mr. 
Lowe  claims  were  rejected  in  the  railroad  towns,  it  is  evident  that  it 
would  have  been  impossible  for  such  ballots  as  Mr.  Lowe's  witnesses  put 
in  evidence,  and  swear  were  used  in  Franklin  County,  to  have  escaped 
the  scrutiny  of  the  party  managers. 

The  contestee,  in  his  answer,  denied  the  allegation  of  the  contestant 
regarding  the  rejection  of  ballots,  and  the  contestant  has  failed  to  prove 
by  legal  evidence  that  any  ballots  were  rejected  by  the  inspectors.  We 
think  that  none  of  the  evidence  by  which  he  attempts  to  prove  these 
facts  is  legal.  The  witnesses  merely  give  their  recollection  on  the  sub- 
ject. Many  of  them  made  out  returns  one  or  more  days  after  the  elec- 
tion was  over,  and  in  many  cases  they  admit  that  even  these  returns 
were  made  out  from  hearsay,  and  many  of  them  show  by  their  evidence 
that  their  entire  knowledge  on  the  subject  is  hearsay.  For  instance,  on 
page  62  of  the  contestant's  brief,  he  claims  that  4  Lowe  votes  were  re- 
jected at  Florence  ;  but  we  think  there  is  not  a  particle  of  proof  to  sus- 
tain this.  He  quotes  the  evidence  of  Judge  Harraway  (i).  908),  and 
Judge  Harraway  states  that  he  knows  nothing  personally  about  it. 

On  the  same  page  of  his  brief  he  claims  that  22  Lowe  votes  were 
rejected  at  Green  Hill.  There  is  no  legal  evidence  to  sustain  this.  The 
witness  on  whom  Mr.  Lowe  relies  (William  H.  Hill)  testifies,  near  bot- 
tom of  page  1389,  that  he  does  not  know  that  22  ballots  were  rejected. 
He  admits  that  immediately  after  the  election  he  made  an  affidavit  be- 
fore Commissioner  Bone  that  15  ballots  were  rejected  at  that  box ;  he 
admits  that  he  knows  nothing  about  it  except  what  a  man  told  him; 
there  is  no  other  proof  regarding  that  box. 

Again,  Edward  C.  Lamb,  page  150,  testifies  as  follows  : 

<j!.  Did  you  count  these  42  ballots  yourself? — A.  No,  sir. 

Q.  Then  your  knowledge — is  it  not  true  that  your  knowledge  of  there  being  42  is 
fiiniply  hearsay  ? — A.  No,  sir ;  I  seen  on  their  tally  sheets. 

Q.  And  yet  you  swear  that  there  were  42  votes  rejected  with  Lowe's  name  on  them, 
■without  ever  seeing  them,  and  without  ever  connting  them  ? — A.  I  seen  them  lying 
a,8ide  there  when  they  were  recounted. 

Q.  Is  it  true  that  you  saw  them  all  in  a  bunch  ? — A.  Yes,  sir ;  when  they  were 
laying  them  down  or  counting  them  out. 

Q.  Is  it  true  that  you  examined  every  ballot,  and  saw  it  have  on  it  the  name  of 
W^illiara  M.  Lowe  ? — A.  No,  sir. 

Such  evidence  as  this  proves  nothing. 

The  law  of  Alabama  (see  Code,  par.  288,  printed  page  1215  of  the 
record  in  this  case)  provides  that  all  rejected  ballots  shall  be  rolled  up 
by  the  inspectors  and  labeled  as  rejected  ballots,  and  that  they  shall 
be  sealed  up  together  with  the  other  ballots,  and  securely  fastened  up 
in  the  box  from  which  said  ballots  were  taken  wheu  thev  were  counted. 


110  DIGEST    OF    ELECTION    CASES. 

The  answer  of  the  coutestt^e  distinctly  alleged  that  where  votes  for 
William  M.  Lowe  were  discarded,  it  was  so  stated  in  the  returns  made 
by  the  inspectors.  In  no  instance  did  the  contestant  put  these  returns 
in  evidence,  or  give  any  reason  for  not  doing  so.  i^or  did  he  put  the 
ballots  which  he  claimed  were  rejected  in  evidence,  nor  does  the  record 
show  that  he  gave  any  reason  for  not  doing  so. 

]Purthermore,  not  one  of  tlie  49  depositions  was  in  any  way  certified 
by  any  commissioner. 

None  of  the  depositions  have  any  certificate  of  any  kind  whatever. 

It  is  provided  in  the  Kevised  Statutes  of  the  United  States  as  fol- 
lows: 

Sec.  127.  All  officers  taking  testimony  to  be  used  in  a  contested-election  case^ 
■whether  by  deposition  or  otherwise,  shall,  when  the  taking  of  the  same  is  completed, 
and  without  unnecessary  delay,  cer/i/y  and  carefully  seal  and  immediately  forward 
the  same,  by  mail,  addressed  to  the  Clerk  of  the  House  of  Kepresentatives  of  the 
United  States,  Washington,  D.  C. 

The  notary  who  took  the  so-called  depositions  of  the  witnesses  named 
above,  took,  in  all,  the  depositions  of  177  witnesses,  a  part  as  testimony 
in  chief  and  a  part  as  testimony  in  rebuttal.  He  certified  none  of  the 
177  depositions,  except  those  of  J.  H.  Bone,  W.  M.  Lowe,  E.  H.  Lowe, 
and  J.  H.  Sloss.  His  only  certificate  is  that  which  (itself  irregular  and 
insufficient)  is  affixed  to  the  deposition  of  W.  M.  Lowe,  the  contestant, 
on  page  1263,  wherein  he  certifies  (irregularly)  the  depositions  taken 
under  "  the  notice  to  contestee."  Under  that  notice,  which  is  printed 
on  page  1264,  only  the  depositions  of  J.  H.  Bone,  W.  M.  Lowe,  R.  H. 
Lowe,  and  J.  H.  Sloss  were  taken. 

The  only  certificates  in  the  entire  record  which  refer  to  the  contest- 
ant's testimony  are  as  follows :  Page  205,  a  certificate  of  Commissioner 
Thomas  C.  Barclay,  reciting  that  it  is  the  certificate  to  the  deposition 
of  James  Jones,  John  Kibble,  Alex.  Jamar,  and  George  Eagland,  taken 
at  Lanier's.    It  is  dated  January  26,  1881. 

Page  293,  the  certificate  of  Commissioner  A.  C.  Bentley,  who  certi- 
fies to  the  deposition  of  55  witnesses,  whose  names  he  gives,  and  none 
of  which  are  the  names  of  any  of  these  49  witnesses.  It  is  dated  April 
1, 1881. 

On  page  338  we  find  certificate  of  Commissioner  Archibald  W.  Brooks, 
which  mentions  eleven  witnesses,  none  of  whom  are  included  in  the  49 
referred  to.    It  is  dated  May  12,  1881. 

On  page  402  is  the  certificate  of  Commissioner  Amos  R.  Moody,  which 
is  attached  to  the  deposition  of  seven  (7)  witnesses,  and  it  certifies  to 
the  depositions  thereto  attached,  but  none  of  the  names  are  those  of 
any  of  the  49  witnesses  referred  to.    It  is  dated  March  15,  1881. 

On  page  460  is  the  certificate  of  Commissioner  E.  P.  Shackelford,  at- 
tached to  the  deposition  of  W.  W.  Simmons,  and  on  page  462  is  the  cer- 
tificate of  same  commissioner,  attached  to  deposition  of  Alex.  Hetiin. 
Both  are  dated  March  11,  1881. 

On  page  1263  we  find  a  certificate  of  Commissioner  Robert  W.  Figg. 
It  certifies  to  the  depositions  of  the  witnesses  named  in  the  notice  to 
the  contestee. 

The  certificate  is  dated  March  16, 1881,  and  is  attached  to  the  deposi- 
tion of  William  M.  Lowe,  and  the  notice  also  attached  and  referred  to  in 
the  certificate  contains  only  the  names  of  James  H.  Bone,  William  M. 
Lowe,  Richard  H.  Lowe,  and  Joseph  H.  Sloss.     (See  page  1264.) 

The  next  certificate  is  that  of  Commissioner  William  T.  Farley,  on 
page  1361.    It  is  dated  March  28,  1881,  and  purports  to  be,  and  is,  at- 


LOWE    VS.    WHEELER.  Ill 

taclied  to  the  depositioD  of  twelve  witnesses,  all  of  whom  are  mentioned 
in  the  certificate. 

The  last  certificate  is  that  of  Commissioner  Eobert  Andrews,  on  pag& 
1399.  It  purports  to  be  a  certificate  to  nine  witnesses,  all  of  whom  ar& 
named  in  the  certificate. 

There  is  no  other  certificate  in  the  record  except  those  attached  to 
the  depositions  of  the  contestee.  ># 

The  only  proof  of  the  rejection  of  these  votes  is  to  be  found  in  what 
are  claimed  to  be  the  depositions  of  T.  W.  White,  37  ;  W.  L.  Goodwin^ 
42;  N.  Davis,  47;  T.  B.  Hopkins,  130;  L.  Bibb,  137;  G.W.  Maples,140;. 
W.  L.  Christian,  143;  E.  J.  Wright,  148;  E.  C.  Lamb,  150;  N.  Whittaker^ 
153  ;  W.  G.  Smith,  370 ;  A.  Gaudy,  373  ;  H.  A.  Skeggs,  376;  J.  Y.Fergu- 
son, 382  ;  W.  A.  Pinkerton,  339  ;  A.  G.  Smith,  343  ;  A.  C.  Witty,  346 1 
W.  McCuUey,  349 ;  J.  E.  Seal,  394  ;  D.  X.  Fike,  397  ;  T.  C.  Walker,  404  j 
W.  J.  Gibson,  496 ;  W.  W.  Simmons,  496. 

The  contestee  objected  to  these  depositions  at  the  commencement  of 
the  present  session  of  Congress  on  the  ground  that  they  were  not  certi- 
fied according  to  law,  and  has  persisted  in  that  objection  until  the  pres- 
ent time. 

Again,  none  of  these  alleged  depositions  were  reduced  to  writing  in 
the  presence  of  the  notary. 

The  provision  of  the  Revised  Statutes  of  the  United  States  is: 

Sec.  122.  The  officer  shall  cause  the  testiiuouy  of  the  witnesses,  together  with  th& 
questions  proposed  by  the  parties  or  their  agents,  to  be  reduced  1o  writing  in  his  presence 
and  in  the  presence  of  the  parties  or  their  agents  if  attending,  and  to  be  duly  at- 
tested by  the  witnesses  respectively. 

The  corresponding  provision  of  the  judiciary  act  of  1789  is  in  the  fol- 
lowing words: 

And  every  person  deposing  as  aforesaid  shall  be  carefully  examiped  and  cautioned 
and  sworn  or  athrmed  to  testify  the  whole  truth,  and  shall  subscribe  the  testimony 
by  him  or  her  given  after  the  same  shall  be  reduced  to  writing,  which  shall  be  done 
only  by  the  magistrate  taking  the  deposition,  or  by  the  deponent  in  his  presence. 

The  provision  that  the  deposition  must  be  reduced  to  writing  in  the 
presence  of  the  ofiicer  is  common  to  the  contested-election  law  and  the 
judiciary  act  of  1789.  It  is  obvious,  therefore,  that  decisions  of  the 
Federal  courts  on  the  provision  of  the  judiciary  act  for  the  writing  out 
of  the  deposition  will  be  authorities  in  cases  which  may  come  before 
this  committee  under  the  corresponding  provision  of  the  statute  relat- 
ing to  contested  elections. 

In  Bell  V.  Morrison,  1  Peters,  351,  Judge  Story,  delivering  the  opin- 
ion of  the  court,  held  that  under  section  30  of  the  judiciary  act  a  depo- 
sition is  not  admissible  if  it  is  not  shown  that  the  deposition  was  re- 
duced to  writing  in  presence  of  the  magistrate. 

The  same  doctrine  is  maintained  by  the  following  authorities:  Ed- 
mondson  v.  Barret,  2  Cranch  C.  C,  228;  Pettibone  v.  Derringer,  4  Wash.^ 
215;  liayner  v.  Haynes,  Hempst.,  689;  Cook  v.  Burnley,  11  Wall.,  659 j 
Baylis  v.  Cochran,  2  Johns.  (N.  T.),  416 ;  Summers  v.  McKim,  12  S.&  R., 
404;  United  States  i\  Smith,  4  Day,  121;  Railroad  Co.  v.  Drew,  3  Woods 
C.  Ct.,  692;  Beale  v.  Thompson,  8  Cranch,  70;  Shankriker  v.  Reading, 
4  McL.,  240;  United  States  v.  Price,  2  Wash.  C.  Ct.,  356;  Hunt  v.  Lar- 
pin,  21  Iowa,  484 ;  Williams  i\  Chadbourne,  6  Cal.,  559 ;  Stone  v.  Still- 
well,  23  Ark.,  444. 

This  objection  applies  to  the  49  depositions  which  it  is  claimed  were 
taken  in  Huutsville  before  R.  W.  Figg,  esq.,  during  the  forty  days 
allowed  bylaw  for  contestant  to  take  testimony-in-chief;  and  to  110 
depositions  which  purport  to  have  been  taken  at  Lanier's  during  the 
period  allowed  by  law  for  contestant  to  take  evidence  in  rebuttal. 


112  DIGEST  OF  ELECTION  CASES, 

The  record  does  uot  show  that  any  of  these  so-called  depositions  were 
reduced  to  writing  in  the  presence  of  the  officer  before  whom  they  pur- 
port to  have  been  taken. 

On  the  contrary,  the  proof  shows  this  was  not  done.  The  evidence, 
page  1116,  shows  that  these  so-called  depositions  were  taken  down  in 
short-hand,  and  that  they  were  afterwards  written  out  in  long-hand 
in  the  absence  of  the  officer,  and  page  1125  shows  that  important  ex- 
hibits were  attached  to  the  depositions  which  the  witnesses  did  not  see. 

The  motions  which  are  supported  by  affidavits  should  be  sustained, 
and  the  49  alleged  depositions  mentioned  in  said  motions  should  be 
suppressed ;  the  motion  to  suppress  110  alleged  depositions  taken  at 
Lanier's  should  be  also  sustained,  and  those  depositions  should  be  sup- 
pressed. 

The  '•  Views  of  Mr.  Ranney  "  contain  the  following  statement : 

The  course  pursued  in  this  respect  was  nianilestly  irregular.  But  this  becomes  now 
immaterial  and  unimportant.  The  various  motions  made  by  the  respective  parties, 
•as  to  striking  out  evidence  have  been  considered  and  denied,  either  as  immaterial 
or  not  well  grounded. 

If  this  merely  means  that  the  decision  of  the  case  on  its  merits  by 
the  Committee  on  Elections  involves  a  decision  of  these  questions  of 
evidence,  and  that  therefore  the  duties  of  the  committee  on  the  subject 
are  ended,  the  statement  is  accurate  enough.  But  if  the  meaning  is 
either  that  the  committee  has  formally  acted  on  these  questions  of  evi- 
dence, or  that  action  by  the  committee,  however  had,  concludes  the 
House  of  Representatives,  so  that  these  questions  "  have  become  imnie- 
teral  and  unimportant"  in  the  House,  the  statement  is  wholly  errone- 
ous. The  House  is  the  judge  on  this  point,  as  on  all  others  involved  in 
the  case,  and  the  materiality  and  importance  of  these  questions  in  the 
House  is  not  affected  by  the  action  of  the  committee. 

(3.)  We  now  proceed  to  the  consideration  of  the  counter-claim  set  up 
by  the  contestee,  to  the  effect  that  1,294  ballots  cast  for  the  contestant 
were  illegal,  not  only  because  they  contained  the  designations  of  eight 
offices  unknown  to  the  law  but  also  for  the  further  reason  that  they 
were  printed  on  such  transparent  pa]>er,  and  with  such  ink  and  type, 
that  the  contents  were  visible  to  the  inspectors  and  bystanders  on  the 
outside  of  the  folded  ballots. 

The  statutory  provision,  as  we  have  seen,  is  that  unless  the  ballot  is 
"  without  any  figures,  marJcs,  rulings,  characters,  or  embellishments 
thereon"  it  must  be  rejected.  Whatever  else  may  or  may  not  be  em- 
braced in  the  meaning  of  the  term  "marks,"  as  here  used,  that  term 
evidently  includes  any  device  or  combination  of  devices  which  will  en- 
able either  the  inspectors,  when  they  receive  a  ballot  and  jlass  it  from 
hand  to  hand  for  deposit  in  the  ballot-box,  or  the  near  by-standers,  to 
distinguish  it  from  other  ballots.  In  this  sense  the  term  "  marks"  may 
include  vseveral  things  or  elements.  It  may  apply  to  a  star,  cross,  line, 
or  circle,  or  to  any  other  printed  form,  or  to  a  series  or  number  of  forms, 
placed  on  the  exterior  of  the  ballot,  so  as  to  enable  the  inspectors  or  by- 
standers to  distinguish  it  from  others.  The  ballot  would  in  that  case 
be  marked.  It  would  not  be,  in  the  sense  of  the  statute,  "  without 
marks."    It  would  fall  within  the  prohibitions  of  the  statute. 

But  if  by  the  use  of  such  paper  and  of  such  type  and  ink  on  the  face 
of  the  ballot  as  to  show  the  face  or  a  part  of  it  through  the  folded  bal- 
lot the  inspectors  and  by-standers  are  enabled  to  distinguish  it  from 
others,  then  also  the  ballot  is  marked,  in  the  sense  of  the  statute, 
whether  the  icords  themselves  are  or  are  not  legible  on  the  outside  of 
the  folded  ballot.  It  is  enough  if  they  are  clearly  visible,  so  that  the 
ballot  may  be  distinguished  from  ballots  of  a  different  kind. 


LOWE    VS.    WHEELER.  113 

The  following  are  exact  representatives  of  1,294  ballots  which  are 
proved  to  have  been  cast  for  the  contestant  and  counted  for  him,  and 
are  to  be  deducted  from  his  vote.  These  ballots,  when  folded,  are 
readily  distinguishable  by  the  inspectors  and  bystanders,  not  only  from 
the  ordinary  legal  ballot,  the  face  of  which  is  not  visible  through  the 
paper  on  the  reverse  side,  but  also  from  each  other : 

For  Electors  for  President  and  Vice 
President  : 

state  at  large. 

JAMES  M.  PICKENS. 
OLIVER  S.  BEERS. 

DISTRICT  ELECTORS. 

Ist  District— C.  C,  McCALL. 
2d  District— J.  B.  TOWNSEND,  * 

3d  District— A.  B.  GRIFFIN. 
4th  District— HILLIARD  M.  JUDGE. 
'  5th  District— THEODORE  NUNN. 
6th  District— J.  B.  SHIELDS. 
7th  District— H.  R.  McCOY. 
8th  District— JAMES  H.  COWAN. 

FOR  CONGRESS— EIGHTH  DISTRICT. 

WILLIAM  M.  LOWE. 

For  Electors  for  President  and  "Vice 
President  : 

state  at  large. 

W.  L.  BRAGG. 
E.  A.  O'NEAL. 

DISTRICT  ELECTORS. 

Ist  District— D.  P.  BESTOR. 
2d  District— JOHN  A.  PADGETT: 
3d  District— J.  F.  WADDELL. 
4lh  District— JOHN  ENOCHS. 
5th  District— THOS.  W.  SADLER. 
6th  District— J.  G.  HARRIS. 
7th  District— F.  W.  BOWDON. 
8th  District— H.  C.  JONES. 


FOR  CONGRESS— EIGHTH  DISTRICT. 

William  M.  Lowe. 

H.  Mis.  35 8 


114  DIGEST    OF   ELECTION    CASES. 

For  Electors  eor  President  and  Vice- 
President  : 


state  at  large. 

W.  L.  BRAGG. 
E.  A.  O'NEAL. 


district  electors. 

1st  District— D.  P.  BESTOR. 
2d  District— JOHN  A.  PADGETT. 
3d  District— J.  F.  WADDELL. 
4th  District^JOHN  ENOCHS. 
5th  District— THOS.  W.  SADLER. 
6th  District— J.  G.  HARRIS. 
7th  District— F.  W.  BOWDON. 
8th  District— H.  C.  JONES. 


for  congress — eighth  district. 


William  M.  Lowe. 


These  transparent  ballots  were  used  in  mountain  counties  and  pre- 
cincts, where  the  law  was  not  well  understood,  and  where  there  was 
the  least  risk  of  detection  and  exposure  of  this  cunning  device  for  de- 
stroying the  secrecy  of  the  ballot.  The  following  are  the  citations  of 
testimony  which  show  that  1,294  ballots  of  this  kiud  were  counted  for 
the  contestant,  at  thirty-four  different  precincts  in  the  district : 


LOWE    VS.    WHEELER. 


115 


Xame  of  witnesa. 


Name  of  precinct  or  box. 


^  X  a 
3    "  » 

.si  ►-I 

ilia 

5z; 


399 
400 
401 
401 
402 
740 
742 
746 
749 
751 
752 
755 
757 
759 
763 
767 
775 
807 
809 
868 
1002 
1004 
1006 
1017 
1018 
1024 
1113 
1130 
1132 
1160 

'ii62 
1166 
1203 
1348 
1352 


R.  H.  Kansom 

C.  M.  Taylor 

W.  M.  Smith 

P.  Barker 

"W.  Burgess 

A.  J.  Barker 

J.  r.  Skelton 

Robt.  Skelton 

F.  M.  Chandler... 

N.  H.  Bridges 

Wm.  C.  Hitch 

J.  H.  Young 

F.  J.  Robinson 

J.  M.  Reid 

R. M.  Seay 

J.  J.  Overdeer 

J.  T.  Gilbreath... 
J.  H.  Hundley.... 
W.  K.  Rainey 

F.  M.  Reeves 

J.  Brown 

W.  C.  McKenney. 
W.  M.  Turner.... 

John  Askew 

W.  C.  Summers... 
Fox  Delony 

G.  G.  Wiggins 

O.  H.  Reid 

J.  M.  Gray 

L.  P.  Landers 

R.  A.  Neely 

M.  S.  Lindsey 

\r.  H.  Bridges.... 
G.  W.  Ponder  .... 
O.  H.  P.  Williams. 
W.  M.  Turner.... 


Waco 

Mountain  Spring. 

Newbnrg 

do    

Pleasant  Site 

Bellefont 

Hunt's  Store 

Scottsboro' 

Berry's  Store 

Bishop's 

Kirby'a  Mills 

Larkinsville 

Nashville 

Collins 

Hawk's  Spring... 

Eash'n 

Davis'  Spring 

Mooresville 

Slough's 

Hartsell's 

Rock  Creek..'. 

Wheeler's 

Cherokee 

Saint's  

do 

Leighton 

Hillsboro'  

Brickville 

Red  Bank 

Landersville 

do 

Oakville 

Mount  Hope 

Moulton 

Cherokee 

do 


60- 
71 
20' 

157 
85 
56 
35 
33 

127 
44 
38 
74 
38 
11 
1 
80 
30 
36 
11 
50 


3 
90 
19 
10 
30 


83 

154 
22 
36 


1,294 


It  is  claimed  that  these  ballots  ought  to  be  counted  for  Eepresenta- 
tive  ill  Congress,  if  for  no  other  candidate.  This  would  be  true,  if  the 
statutory  i)ro vision  had  been  merely  that  such  names  of  candidates  and 
designations  of  offices  as  should  be  placed  on  the  ballots  in  violation  of 
the  law  should  be  rejected  in  the  canvass.  But  such  is  not  the  pro- 
vision of  the  Statute.  The  statutory  provision  is  that  if  the  ballots  are 
not  in  the  form  prescribed,  the  ballots  themselves  shall  be  rejected. 

It  seems  to  us  clear  that  these  1,294  ballots,  which  not  only  contained 
the  designations  of  eight  offices  unknown  to  the  law  of  Alabama,  but 
were  also  marled  ballots,  and,  for  that  reason,  peremptorily  excluded  by 
a  mandatory  law  of  that  State,  were  illegally  counted  for  Mr.  Lowe,  and 
are  to  be  de<lucted  from  his  vote. 

The  question  here  presented  is  a  new  question.  It  was  not  considered 
by  the  Committee  on  Elections  in  the  Mississippi  case  of  Lynch  v.  Chal- 
n)ers.  The  differences  between  the  statutory  provisions  of  Mississippi 
and  Alabama,  and  between  the  ballots  in  the  two  cases,  are  such  that  a 
decision  in  one  of  the  cases  will  not,  necessarily,  furnish  a  precedent  for 
the  other.    The  Mississippi  statute  is  in  the  following  words : 

All  ballots  shall  be  written  or  printed  in  black  ink,  with  a  space  not  less  than  one- 
fifth  of  an  iuch  between  each  name,  on  plain,  white  printing  news  paper,  not  more 
than  two  and  oue-half  nor  less  than  two  and  one-fonrth  inches  wide,  without  any  de- 
vice or  mark  by  which  one  ticket  may  be  known  or  designated  from  another,  except  the  words 
at  the  head  of  thv  ticket;  but  this  shall  not  prohibit  the  erasure,  correction,  or  insertion 
of  any  name  by  pencil- mark  or  mk  upon  the  face  of  the  ballot;  and  a  ticket  different 
from  that  herein  prescribed  shall  not  be  received  or  counted. 


116  DIGEST    OF    ELECTION    CASES. 

As  we  have  seen,  tl&e  Alabama  provision  is  that — 

The  ballot  must  be  a  plain  piece  of  white  paper,  without  auy  figures,  marks,  rul- 
ings, characters,  or  embellishments  thereon,  not  less  than  two  nor  more  than  two  and 
one-half  inches  wide,  and  not  less  than  five  nor  more  than  seven  inches  long,  on  which 
must  be  written  or  printed,  or  partly  ivritien  and  partly  printed,  only  ihenames  of  theperaons 
for  whom  the  elector  intends  to  vote,  and  must  designate  the  office  for  which  each  person  so 
named  is  intended  by  him  to  be  chosen  ;  and  any  ballot  othertvise  than  described  is  illegal  and 
•must  be  rejected. 

The  provisions  of  the  Mississippi  law  applicable  to  the  case  of  Lynch 
V.  Chalmers,  are:  (1)  That  the  ballot  shall  be  without  auy  device  or 
mark  by  which  one  ticket  may  be  known  or  distinguished  from  another, 
except  the  words  at  the  head  of  the  ticket,  and  (2)  that  a  ticket  different 
from  that  prescribed  shall  not  be  received  or  counted.  The  provisions 
of  the  Alabama  statute  applicable  to  the  case  now  on  trial,  are:  (1)  That 
the  ballot  must  be  without  marks,  and  must  contain  only  the  names  of 
the  i^ersons  for  whom  the  elector  intends  to  vote,  and  the  designations 
of  the  offices,  and  (2)  that  any  ballot  otherwise  than  as  described  is  il- 
legal and  must  be  rejected.  In  the  Mississippi  case  the  grounds  of  ob- 
jection to  the  ballots  were  that  certain  printer's  dashes  separated  differ- 
ent headings  of  the  ticket.  In  this  case  the  grounds  of  objection  are 
that  the  ballots  contained  the  designations  of  eight  offices  unknown  to 
the  law,  and  that  they  were  so  marked,  by  the  use  of  peculiar  paper,  ink, 
and  type,  as  to  be  readily  distinguished  from  other  ballots,  even  when 
folded.  The  differences  between  the  two  cases  are  too  palpable  to  re- 
quire or  justify  any  comment. 

What  we  have  said  is  sufficient  to  show  that  these  ballots  are  illegal ; 
but  there  is  other  evidence  in  this  case  which  makes  their  rejection  still 
more  imperative. 

The  evidence  shows  that  Mr.  Lowe's  supporters  used  the 
marked  ballots,  together  with  violence  and  terrorism,  to 
destroy  secret  voting. 

The  evidence  shows  clearly  that  the  using  of  these  ballots  in  the  pre- 
cincts where  it  is  claimed  they  were  rejected  was  for  the  unlawful  pur- 
pose of  preventing  a  secret  ballot. 

It  is  evident  that  with  these  ballots  secrecy  was  impossible,  and  that 
such  ballots  could  be  identified  in  the  hands  of  the  voters. 

It  is  certain  that  when  voters  are  abused,  terrorized,  and  ostracized 
for  not  voting  as  their  leaders  dictate,  the  weaker  classes  will  hesitate 
before  going  to  the  polls  with  ballots  different  from  those  ordered  by 
their  leaders. 

It  was  distinctly  charged  in  the  answer,  and  proved  by  over  fifty  wit- 
nesses, that  the  supporters  of  Mr.  Lowe  had  unlawfully  maintained  a 
state  of  terrorism  and  alarm  among  the  colored  persons  by  threats  of 
harm  to  their  persons  and  property.  (See  Kecord,  pages  506,  893,  894, 
895,  896,  898, 900,  902,  904,  959,  960,  961,  962,  963,  964,  966,  967,  969,  970, 
999, 1000, 1001, 1002, 1020, 1021,  1022,  1023,  1024, 1025, 1066, 1068,  1070, 
1072, 1075, 1076, 1079, 1081, 1082,  1085, 1089, 1091, 1093, 1095, 1098, 1102, 
1109, 1111.) 

This  uncontradicted  testimony  of  more  than  fifty  witnesses,  including 
men  of  all  parties  and  of  both  colors,  shows  that  by  threats  of  bodily 
harm,  by  ostracism,  and  by  fear  and  intimidation.  Greenback  leaders 
have  absolutely  destroyed  freedom  of  election  among  the  weaker  class 
of  colored  persons  in  the  eighth  district  of  Alabama. 

A  colored  man,  page  1079,  swears  that  if  colored  men  had  been  left  to 
their  own  choice  nearly  all  would  have  voted  the  Garfield  and  Wheeler 
ticket.    They  would  have  so  voted  had  it  not  been  for  the  threats  of 


LOWE    VS.    WHEELER.  117 

the  Greenback  leaders,  and  this  same  character  of  evidence  is  found  on 
pages  1067,  IOCS,  1071,  1073^,  1075|,  1081^,  1083^,  1085J,  1089f,  1092^, 
1096  1098, 1102f,  1110,  1112. 

It  is  also  in  proof  (see  bottom  of  page  1095)  that  two  colored  men, 
Peter  Walker  and  John  Bell,  attempted  to  become  candidates  for  the 
legislature  upon  the  Republican  ticket,  and  these  Greenback  leaders 
drove  them  from  the  town  and  threatened  to  kill  them. 

Also,  on  this  subject,  see  pages  1066,  1070^,  1073,  1075,  1079,  1085 J, 
1087i,  1089i,  1091^,  1092, 1096, 1098, 1102, 11093 

We  might  stop  with  the  above,  but  in  passing  we  will  call  the  atten- 
tion to  the  evidence  of  two  of  Mr.  Lowe's  witnesses.  Wade  Blanken- 
ship  and  William  Wallace. 

These  men  were  party  managers  for  Mr.  Lowe.  They  testified  that 
they  required  every  man  to  carry  his  ballot  at  least  a  foot  and  a  half 
from  his  body.     (See  bottom  of  page  224.) 

Wallace  says,  page  234f : 

"  /  lold  it  to  every  man.    Now,  I  said,  you  hold  your  ticket  so  1  can  see  it." 
Wallace  also  testified,  page  223J,  as  follows : 

Q.  You  thought  it  important  to  examine  their  wrist  and  see  that  there  was  noth- 
ing up  their  sleeves  ? — A.  Yes,  sir ;  I  did. 

Q.  And  you  examined  each  one  in  this  way  t — A.  Yes,  sir.  I  examined  every  one 
that  voted  the  ticket. 

Q.  You  examined  each  one  of  the  156  colored  men? — A.  Yes,  sir;  I  did. 

Q.  You  examined  their  hands  and  sleeves  to  see  that  there  could  be  no  foul  playT — 
A.  Well,  I  did  not  feel  of  their  arms  and  sleeves,  but  I  examined  their  wrists  close 
before  I  gave  them  their  ticket. 

We  think  the  evidence  shows  beyond  question  that  the  policy  of  the 
Greenback  party  was  to  prevent  a  secret  ballot.  Mr.  Lowe's  witnesses, 
supporters,  and  managers  swear  they  examined  the  wrists  of  voters, 
and  made  them  hold  the  ballot  at  least  a  foot  and  a  half  from  the  body 
to  prevent  the  possibility  of  their  escaping  the  surveillance  of  party 
managers. 

This  was  the  plan  adopted  with  colored  men,  but  in  localities  where 
possibly  objections  might  be  urged  to  so  close  inspection  of  undercloth- 
ing Mr.  Lowe's  managers  adopted  the  plan  of  having  the  ballots  marked 
so  that  they  could  without  question  identify  the  ballot  in  the  hands  of 
the  voter. 

We  have  examined  the  ballots,  and  cannot  resist  the  conclusion  that 
these  ballots  were  issued  to  enable  party  managers  to  destroy  the  free- 
dom and  i3urity  of  the  election,  and  to  prevent  secrecy  of  the  ballot,  and  to 
place  the  voter  under  improper  restraint  or  influence  in  casting  his  ballot. 

More  than  a  year  prior  to  N^ovember  2,  1880,  this  law  had  been  con- 
strued by  an  eminent  judge  of  the  State  of  Alabama.  His  decision  was 
as  follows : 

Transcript. 

The  State  of  Alabama, 

Cullman  County : 

Before  Hon.  Louis  Wyetb,  judge  of  the  fifth  judicial  court. 

Charles  Plato  ) 

vs.  >  Contest  of  election. 

Julius   Damus.  S  • 

In  this  case  Charles  Plato  contests  the  election  of  Julius  Damus  to  the  office  of 
mayor  of  the  town  of  Cullman,  in  the  county  of  Cullman,  claiming  to  have  been  elected 
to  that  ofldce  himself  by  a  majority  of  the  votes  cast  at  the  election  held  on  the  first 
Monday  in  April,  1879. 


118  DIGEST    OF   ELECTION   CASES. 

The  respondent  claims  to  hold  the  office  under  the  certificate  of  election  issued  by 
the  proper  officers  under  the  provisions  of  the  "  act  of  assembly  to  establish  a  new 
charter  for  the  town  of  Cullman."     (Pamphlet  Laws  of  1879,  p.  304,  section  9.) 

On  examining  and  counting  the  votes  it  appears  that  fifty-four  of  them  were  cast 
for  the  contestant  and  twenty-seven  for  the  respondent ;  of  these  fifty-four  votes  given 
for  the  contestant  fifty -two  had  printed  on  them,  at  the  top  of  the  ballot,  the  words 
"Corporation  Ticket,"  and  of  the  twenty-seven  votes  cast  for  respondent  three  had  in 
like  manner  printed  thereon  the  same  words,  and  the  question  for  me  to  decide  is 
whether  or  not  those  words  rendered  the  ticket  on  which  they  were  printed  illegal 
ballots,  and  such  as  must  be  rejected. 

The  act  approved  February  12,  1879,  Pamphlet  Laws,  pp.  72,  73,  requires  that  the 
ballot  must  be  a  plain  piece  of  white  paper  without  any  figures,  marks,  rulings, 
characters,  or  embellishments  thereon,  »  »  *■  on  which  must  be  written  or  printed 
•  *  *  only  the  names  of  the  persons  for  whom  the  elector  intends  to  vote,  and  must 
designate  the  office  for  which  each  person  so  named  is  intended  by  him  to  be  chosen, 
and  any  ballot  otherwise  than  described  is  illegal,  and  must  be  rejected. 

The  law  under  which  the  election  now  being  considered  was  held,  in  section  4, 
Pamphlet  Laws,  1879,  p.  305,  declares  "that  the  election  provided  for  in  this  charter 
shall  be  regulated  by  the  general  State  election  law.'' 

The  judicial  officer  of  the  State  has  nothing  to  do  with  the  propriety  of  a  statute. 
If  not  void  by  reason  of  a  constitutional  inhibition,  the  judicial  duty  is  limited  to  their 
construction  and  enforcement. 

These  ballots  had  more  than  only  the  names  of  the  persons  for  whom  the  elector 
intends  to  vote,  or  the  designation  of  the  office,  and  must  be  rejected  because  illegal. 
Such  is  the  mandate  of  law,  and  so  I  must  declare  it. 

It  is  considered,  adjudged,  and  orglered  that  the  election  of  Julius  Damus  as  mayor 
of  the  town  of  Cullman,  in  the  county  of  Cullman,  be  confirmed,  and  that  the  contest- 
ant paj^  the  costs  of  this  court. 

LOUIS  WYETH, 

Judge,  ^'C. 

JUXE  9,  1879. 

The  State  of  Alabama, 

Cullman  County : 

I,  Julius  Damus,  clerk  of  the  circuit  court  of  said  county,  hereby  certify  that  the 
foregoing  is  a  full  and  complete  transcript  of  the  decision  of  Hon.  Louis  Wyeth,  judge 
of  the  fifth  judicial  circuit,  from  the  records  of  said  court,  in  a  cause  decided  by  said 
judge,  wherein  Charles  Plato  was  contestant  and  Julius  Damus  respoudent. 

And  I  further  certify  that  the  circuit  courts  of  Alabama  are  courts  of  unlimited  and 
appellate  jurisdiction,  and  are  the  highest  courts  of  the  State  of  Alabama  except  the 
supreme  court. 

Given  under  my  hand  and  seal  of  office  this  third  day  of  January,  1882. 

[SEAL— STAMP.]  JULIUS  DAMUS, 

ClerJc  Circuit  Court  of  Cullman  Couvty,  Alabama. 

The  numerous  authorities  which  the  contestee  cites  in  pages  14  to  85 
of  his  brief,  conclusively  show  that  Congress  and  the  courts  and  all  law- 
'  writers  have  uniformly  held  that,  under  such  a  law  as  that  of  Alabama, 
ballots  like  those  now  under  consideration  are  illegal. 

1st.  The  law  of  Mississipj)!  provides  that  all  ballots  shall  be  *  *  * 
"  without  any  device  or  mark  by  which  one  ticket  may  be  known  or  dis- 
tinguished from  another." 

This  leaves  room  for  debate  as  to  whether  the  marks  on  the  ballots 
were  marks  by  which  one  ticket  may  be  known  or  distinguished  from 
another. 

The  Alabama  law  provides  that  the  ballot  shall  have  "  only  the  names 
of  the  persons  for  whom  the  elector  intends  to  vote  and  the  designations  of 
the  office ;  "  therefore  this  law  does  not  give  latitude  for  debate  on  this 
question. 

The  Alabama  law  and  Pennsylvania  law  (see  page  21  of  contestee's 
brief)  stand  alone  in  this,  that  they  alone  prohibit  anything  being  on  the 
ballots  but  the  names  of  candidates  and  designations  of  the  offices. 

In  the  report  of  the  case  of  Lynch  v.  Chalmers  the  committee  say,  on 
page  11 : 

It  need,  however,  hardly  be  added  that  a  line  of  carefully  considered  cases  in  the 


LOWE    VS.    WHEELER.  119 

States,  in  which  such  courts  have  undoubted  jurisdiction,  so  far  as  they  would  apply 
in  principle,  would  go  a  lonjj  way  towards  settling  a  disputed  point  of  construction 
in  any  State  election  law.  In  fact  it  may  be  said  that  it  would  probably  be  the  duty 
of  Congress  to  follow  the  settled  doctrine  thus  established. 

On  page  10 : 

Where  decisions  have  been  made  for  a  sufiScient  length  of  time  by  State  tribunals, 
construing  election  laws,  so  that  it  may  be  presumed  that  the  people  of  the  State 
knew  what  such  interpretations  were,  would  furnish  another  good  reason  why  Con- 
gress should  adopt  them  iu  Congressional  election  cases. 

And  on  page  1'^ : 

Had  the  opinion  been  rendered  before  the  election  of  1880,  or  become  one  of  the 
settled  laws  of  Mississippi,  we  do  not  say  but  that  it  would  have  such  weight  with 
us  that,  though  we  luigh^j  disagree  with  it  in  logic,  we  might  feel  compelled  to  fol- 
low it. 

Now,  certainly,  the  facts  in  this  case  bring  it  within  the  principles 
here  expressed. 

The  decision  of  Judge  Wyeth  was  rendered  June  9, 1879,  seventeen 
months  before  the  election  of  November  2,  1880. 

1st.  It  was  carefully  considered. 

2d.  The  court  had  undoubted  jurisdiction. 

3d.  It  had  been  made  for  a  sufficient  length  of  time ;  and  above  and 
beyond  this,  to  use  the  language  of  Mr.  Justice  Curtis,  16  How.,  279- 
87,  quoted  page  11  of  Lynch  report,  it  was  "  needful  to  the  ascertainment 
of  the  right  or  title  in  question  between  the  parties.^ 

The  committee, in  Lynch  v.  Chalmers,  say: 

WTiat  we  have  here  remarked  does  not,  of  course,  apply  to  the  marks  or  devices 
ordinarily  used  on  tickets,  such  as  spread  eagles,  portraits,  and  the  like;  those  would 
be  considered  marks  and  devices  of  themselves,  and  not  necessary  in  the  ordinary 
mechanical  art  of  printing.  The  use  of  the  latt^er  would  l)e  considered  a  violation  of 
the  statute  in  any  aspect  of  the  case,  while  the  use  of  the  former  seems  to  us,  in  any 
view  of  the  law,  ought  to  be  restricted  to  an  intentional  or  manifest  misuse. 

We  submit  that  this  reasoning  makes  the  Greenback  ballots  clearly 
obnoxious  to  the  statute  of  Alabama. 

The  act  amending  section  274  is  a  remedial  act.  Sedgwick,  page  309, 
says : 

The  words  of  a  remedial  statute  are  to  be  construed  largely  and  beneficially,  so  as 
to  suppress  the  mischief  and  advance  the  remedy.  It  is  by  no  means  unusual  in  con- 
struing a  remedial  statute,  it  has  been  said,  to  extend  the  enacting  words  beyond 
their  natural  import  and  effect,  in  order  to  include  cases  within  the  same  mischiefs. 

Remedial  statutes  are  liberally  expounded  in  advancement  of  the  object  of  the  leg- 
islature.    (Blakeney  v.  Blakeney,  6  Port.,  109.) 

A  remedial  statute  must  be  construed  largely  and  beneficially,  so  as  to  suppress  the 
mischief  and  advance  the  remedy.     (Sprowl  v.  Lawrence,  33  Ala.,  674.) 

Let  us  now  see  what  was  sought  to  be  remedied  by  the  amendment 
to  section  274  of  the  code,  approved  February  12,  1879. 

It  is  shown  by  the  evidence,  p.  1237  of  the  record,  that  at  elections 
prior  to  November  2,  1880,  the  Democrats  used  ballots  substantially  in 
form  to  the  exhibits  above ;  that  is,  the  exhibits  on  pages  1229,  1230, 
1231,  1232,  1233,  1234,  1235,  1236,  which  have  the  words ;  ♦ 

Statk  at  Lakge. 

IHstriet  electors. 

Ist  District — 
2d  District— 
3d  District— 
4th  District— 
5th  District— 
6th  District — 
7th  District — 
8th  District— 


120  DIGEST    OF   ELECTION    CASES. 

And  one  of  which,  page  1234,  is  almost  precisely  like  the  ballots 
which  are  rejected. 

The  evidence  shows  that  at  previous  elections  ballots  were  used  sub- 
stantially like  the  Weaver  and  Lowe  and  Hancock  and  Lowe  ballots,  and 
that  the  remedy  sought  was  to  prevent  the  use  of  the  very  ballots  which 
the  Greenback  party  insisted  upon  using. 

The  report  of  the  majority  even  admits  the  correctness  of  our  ijosition 
on  this  subject. 

We  are  to  bear  in  mind  these  facts : 

1st.  The  election  preceding  and  nearest  to  I^fovember  2,  1880,  when 
such  ballots  were  used,  or  could  by  any  possibility  have  been  used,  was 
the  election  of  November,  1876. 

2d.  The  first  legislature  of  Alabama  which  was  elected  after  the  No- 
vember Presidential  election  of  1876  proceeded  to  and  did  amend  sec- 
tion 274  of  the  code,  and  did  prohibit  by  the  law  they  enacted  the  use 
of  the  very  ballots  which  the  contestant  swears  were  used  in  November, 
1876,  and  preceding  elections. 

This  shows  what  was  to  be  remedied. 

We  are  also  to  remember — 

3d.  That  Judge  Wyeth  construed  the  la^w  on  June  9, 1879,  just  as  we 
construe  it. 

4th.  That  the  contestant  swears  that  the  August,  1880,  canvass  was 
made  mainly  by  attacking  this  law. 

5th.  That  with  all  this  before  them,  he  and  his  party  managers 
defied  the  law  they  had  denounced,  and  printed  ballots  and  placed  in 
voters'  hands  ballots  which  were  prohibited  by  tbe  law  of  the  State. 

6th.  That  nearly  100  witnesses  in  this  case  testify  that  the  Greenback 
party  compelled  men  to  vote  their  ticket  by  threats  and  terrorism, 
and  that  40  witnesses  (including  men  of  both  colors  and  all  parties) 
swear  that  but  for  this  system  of  terrorism  exercised  by  the  Greenback 
leaders  at  least  half  of  the  people  who  voted  for  contestant  would  have 
voted  with  the  party  which  supi)orted  the  contestee. 

Considering  all  these  things  together,  we  see  how  necessary  it  was  for 
contestant  to  have  a  ballot  which  could  be  distinguished  by  his  party 
leaders,  in  order  to  keep  the  weaker  classes  in  line  and  prevent  them 
from  secretly  voting  as  they  desired. 

IIL 

Lanier's  Precinct,  Madison  County. 

The  contestant,  in  his  summary  of  the  result  of  the  election,  rejects 
the  official  returns  of  Lanier's  precinct,  in  Madison  County,  but  at  the 
same  time  counts  for  himself  128  votes,  which  he  says  he  has  proven  by 
the  depositions  of  witnesses.  There  would  be  no  warrant  of  law  for 
counting  these  128  votes  for  the  contestant,  even  if  the  fact  were,  as  it 
is  not,  that  he  had  successfully  assailed  the  integrity  of  the  returns, 
and  had  also  proved  by  witnesses  that  those  128  votes  were  cast  for 
him.  For  the  law  commands  that  the  contestant  shall,  in  his  notice  of 
contest,  specify  particularly  the  grounds  on  which  he  relies.  But  the 
notice  of  contest  contains  no  allusion  to  any  claim  of  these  128  votes. 
In  truth  the  notice  of  contest  does  not  clearly  advise  the  contestee  of 
any  purpose  on  the  part  of  the  contestant  to  demand  even  the  rejec- 
tion of  the  Lanier  returns.  It  embraces  a  charge  framed  in  these 
words:  "That  there  was  fraud  and  ballot-box  stuffing,  or  a  false  count, 
and  the  substitution  of  Wheeler  boxes  for  Lowe  ballots,"  at  this  pre- 


LOWE    VS.    WHEELER.        .  121 

cinct.  It  is  a  charge  that  one  thing  or  another  thing  was  done.  That 
is  uo  charge  known  tb  the  hiw.  Having  made  this  alternative  and 
therefore  furtile  charge,  he  fails  to  demand  a  rejection,  or  any  other  dis- 
position of  the  returns.  It  is  obvious,  therefore,  that  under  the  plead- 
ings the  contestant  cannot  ask  the  House  to  reject  these  returns,  or  be 
permitted  to  appropriate  these  128  votes. 

The  contestee  denies  that  these  votes  are  proved  to  have  been  cast  for 
the  contestant.  In  the  first  place,  not  one  of  the  depositions  offered  to 
prove  them  is  certified  by  the  officer  before  whom  they  purport  to  have 
been  taken,  or  by  any  other  officer.  This  fact  alone  is  a  fatal  objection. 
Furthermore,  the  testimony  offered  to  prove  that  the  128  votes  in  ques- 
tion were  cast  for  the  contestaut  is  testimony-in  chief,  and  yet  it  was 
taken,  in  violation  of  the  law  and  against  the  protest  of  the  contestee, 
during  the  period  fixed  by  the  statute  for  taking  rebutting  proofs.  And, 
finally,  the  notary",  at  the  instigation  of  the  contestant,  unlawfully  re- 
fused to  permit  the  contestee  to  cross-examine  any  of  the  106  witnesses, 
whose  so  called  depositions  are  printed  on  pages  1270  to  1333  of  the 
record. 

But  these  128  depositions,  lame  and  sickly  as  thej'  are  in  point  of 
competency,  are  as  to  intrinsic  character  in  a  still  more  disorderly  and 
repulsive  condition.  The  contestant  asserts  that  they  show  that  128 
votes  were  cast  for  him  for  Representative  in  Congress.  But  the  fact 
is  they  only  show  that  17  votes  were  cast  for  him,  whereas  the  returns 
themselves  give  him  56.  Five  of  the  128  witnesses  testify  that  they 
voted  for  William  M.  Lowe  for  President  of  the  United  States ;  twenty- 
eight  testify  that  they  did  not  kuow  for  what  office  Mr.  Lowe  was  a 
candidate ;  seventy-seven  testify  they  only  knew  by  hearsay  for  whom 
they  voted,  and  of  these  latter  twenty  say  that  they  did  not  see  the 
faces  of  the  tickets  which  they  voted ;  and,  finally,  one  of  the  128  does 
not  say  that  he  voted  at  all  at  this  precinct. 

Let  us  first  consider  for  a  moment  the  contestant's  Presidential  can- 
vass in  this  precinct.  We  shall  have  occasion  to  observe  something  of 
the  quality  and  flavor  of  the  proof  by  which  he  aims  to  impeach  the 
precinct  returns. 

Scip  Shelby,  1290 : 

Q.  State  all  the  persons  you  voted  for,  and  the  offices  for  which  they  were  mnning. 
A.  I  didn't  vote  for  any  one  but  Mr.  Lowe.     Mr.  Lowe  was  running  for  President. 

Q.  State  all  the  circumstances  connected  with  the  giving  of  the  said  ticket  to  you 
by  the  said  Wallace  Toney. — A.  He  handed  me  the  ticket  and  told  me  to  put  it  in  the 
hex  as  he  had  given  it  to  me. 

Q.  State  if  it  is  not  true  that  you  do  not  know  what  ticket  you  voted  except  from 
what  Wallace  Toney  told  you. — A.  It  is  true. 

Tom  Smith,  1299: 

Q.  State  all  the  names  of  the  persons  you  voted  for,  and  what  offices  they  were  can- 
didates for,  and  when  you  voted. — A.  I  voted  for  Mr.  Lowe  and  Mr.  Garfield ;  Mr. 
Lowe  was  running  for  President;  I  do  not  know  what  office  Mr.  Garfield  was  running 
for  on  the  2d  November. 

Q.  State  what  Wallace  Toney  said  to  you  when  he  gave  you  the  ticket. — A.  Handed 
me  ticket  and  told  me  to  not  let  it  touch  my  body  anywhere. 

Q.  Was  it  open  or  folded  ? — A.  Folded. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
what  Walllace  Toney  told  you. — A.  It  is  true. 

Charles  Arnett,  1308: 

Q.  State  what  time  you  voted  last,  who  you  voted  for,  and  what  offices  they  were 
running  for. — A.  I  voted  last  year;  I  don't  know  what  month;  /  voted  for  Lowe  for 
President. 


122  DIGEST    OF    ELECTION    CASES. 

Tom  Abrams,  1318 : 

Q.  State  the  names  of  the  persons  you  voted  for,  and  the  offices  for  which  they  were 
running. — A.  I  voted  for  Mr.  Lowe;  he  teas  running  for  the  Presidency. 

Q.  State  if  it  is  not  true  that  you  didn't  know  who  you  voted  for  except  from  hear- 
say; and  can  you  read? — A.  It  is  true;  I  can't  read. 

Jere  Lanier,  1325: 

Q.  Whom  did  you  vote  for,  and  the  offices  for  which  they  were  running,  and  the 
last  time  you  voted t — A.  I  voted  for  Mr.  William  M.  Lowe;  I  can't  tell  who  else  were 
running;  Mr.  Lowe  was  running  for  President;  last  November. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
hearsay. — A.  It  is  true. 

It  is  not  the  right  of  the  contestant  to  ask  that  votes  cast  for  him  as 
a  candidate  for  the  position  of  Chief  Magistrate  shall  be  counted  as 
votes  cast  for  Eepresentative  in  Congress. 

Let  us  now  turn  to  the  depositions  of  the  voters  who  swear  that  they 
did  not  know  for  what  office  the  contestant  was  a  candidate. 

Bill  Owens,  1275 : 

Q.  State  the  names  of  all  the  persons  you  voted  for  on  said  day,  and  the  offices  for 
which  they  were  running, — A.  I  voted  for  William  M.  Lowe;  I  did  not  vote  for  any 
one  else  ;  I  donH  know  what  office  he  was  running  for. 

Q.  Is  it  not  true  that  you  do  not  know  what  ticket  you  voted  on  said  day  except 
from  what  Wallace  told  you  t — A.  Yes,  sir. 

Euben  Lankford,  1276 : 

Q.  When  was  the  last  time  you  voted  ;  for  whom  did  you  vote!  Name  all  the  per- 
sons you  voted  for,  and  the  offices  for  which  they  were  running. — A.  I  voted  in  No- 
vember ;  I  voted  for  Mr.  Lowe ;  I  do  not  know  any  other  names,  nor  what  offices  Mr. 
Lowe  was  running  for. 

Q.  Do  you  know,  except  from  what  Wallace  told  you,  what  ticket  you  voted  and 
■who  you  voted  for  T — A.  No,  sir. 

Q.  Was  your  ticket  open  or  folded  when  he  gave  it  to  you  f — A.  Folded.    . 

Nat  Donegan,  1281  ; 

Q.  Do  you  know  what  office  Mr.  Lowe  was  a  candidate  for  I — A.  I  don't  know. 
•  Q.  Please  state  if  it  is  not  true  that,  aside  from  what  Wallace  Toney  told  you,  you 
do  not  know  -what  ticket  you  voted  and  for  whom  you  voted  on  November  2,  1880. — 
A.  It  is. 

Q.  Can  you  read ;  and  was  that  ticket  open  or  folded  when  said  Toney  ? — A.  Folded ; » 
cannot  read. 

Anthony  Lipscomb,  1284 : 

Q.  Do  you  know  what  office  Colonel  Lowe  was  running  for  f — A.  No. 

Q.  Would  you  recognize  the  ticket  you  voted  that  day? — A.  I  have  no  knowledge 
except  what  I  was  told. 

Q.  It  is  true,  then,  is  it  not,  that  you  do  not  know  of  your  own  knowledge,  that  is 
to  say,  aside  from  what  you  were  told  by  said  Wallace  Toney,  what  ticket  you  voted 
on  said  day,  or  who  you  voted  for  1 — A.  Yes. 

Q.  Was  said  ticket  open  or  folded  ? — A.  Folded. 

Wm.  Mendum,  1287 : 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  candidates,  and  when  you  last  voted. — A.  I  voted  for  Garfield  and  Arthur  and 
Willie  Lowe.     /  don't  know  what  offices  they  were  running  for.     November  2,  1881. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
■what  Wallace  Toney  told  you. — A.  It  is  true. 

C.  Anderson,  1287 : 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  for  what  offices  they  were 
candidates,  and  when  you  last  voted. — A.  No  person  but  Mr.  Lowe.  /  don't  know 
what  office  he  was  running  for.     I  voted  in  November,  1880. 

Q.  State  if  it  is  not  true  that  yon  don't  know  what  ticket  you  voted  except  from 
■what  Wallace  Toney  told  you. — A.  It  is  true. 

W.  Weedeu,  1288 : 

Q.  Who  did  you  vote  for,  and  when  did  you  vote,  and  for  wha  to  ffices  were  the  per- 


LOWE    VS.    WHEELER.  123 

sons  running  for  ? — A.  I  voted  for  Colonel  Lowe  ;  do  not  knoto  what  office  he  was  running 
for ;  don't  know  anybody  else  that  was  running. 

Q.  Is  it  not  true  that  you  do  not  know  what  ticket  you  voted  except  what  said 
Toney  told  you  ? — A.  It  is  true. 

B.  Lightfoot,  1289 : 

■  Q.  State  the  names  and  oflSces  for  whom  you  voted. — A.  Mr.  Lowe  was  the  only 
one.     /  don't  knotv  tvhat  office  he  teas  running  for, 

Q.  Is  it  true  that  you  do  not  know  what  ticket  you  voted  except  from  what  said 
Toney  told  you? — A.  It  is  true. 

Cal  West,  1291 : 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  candidates. — A.  I  voted  for  Mr.  Lowe;  I  donH  know  tvhat  he  teas  running  for. 

Q.  Is  it  not  true  that  you  don't  know  what  ticket  you  voted  except  from  what 
Wallace  Toney  told  you  ? — A.  It  is  true. 

Chas.  West,  1291 : 

.Q.  State  the  names  of  all  the  persons  you  voted  for  on  said  day,  and  the  offices  they 
were  running  for. — A,  I  don't  remember  but  two,  Mr.  Lowe  and  Garfield.  Garfield 
was  running  for  Congress,  Loire  was  running  for  the  same. 

Q.  Is  it  not  true  that  you  don't  know  what  ticket  you  voted  except  what  Wallace 
Toney  told  you  ? — A.  It  is  true. 

Cagy  Kelly,  1292 : 

Q.  State  the  names  of  the  persons  you  voted  for  and  the  offices  for  which  they  were 
running. — A.  I  voted  for  Mr.  Lowe  and  nobody  else.  /  donH  know  what  office  he  was 
running  for. 

Q.  State  if  it  is  not  true  that  you  did  not  know  what  ticket  you  voted  except  what 
Wallace  Toney  told  you. — A.  It  is  true. 

K.  Farley,  1293 : 

Q.  State  all  the  names  of  the  jiersons  you  voted  for  and  the  offices  for  which  they 
were  candidates. — A.  Mr.  Lowe  and  Garfield,  Greenbacker. 

Q.  State  if  it  is  not  true  that  yon  don't  know  what  ticket  you  voted  at  the  last  elec- 
tion.— A.  It  is  true.     I  voted  the  ticket  I  got  from  Toney,  and  don't  know  what  it  was. 

John  Brown,  1294: 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  running,  and  when  you  last  voted. — A.  No  one  but  Mr.  Lowe  that  I  know  of ; 
I  don't  know  what  office  he  was  running  for  ;  I  voted  last  in  November,  1880. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  for  except 
what  Wallace  Toney  told  you. — A.  It  is  true. 

John  Landman,  1294: 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  running,  and  when  you  last  voted. — A.  Lowe  was  one  and  Garfield;  I  don't 
knotv  tvhat  offices  they  irere  running  for. 

Q.  Is  it  not  true  tliatyou  don't  know  what  ticket  you  vot^  except  from  what  Wal- 
lace Toney  told  youT — A.  It  is  true. 

R.  Smith,  1295 : 

Q.  State  all  the  names  of  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  candidates,  and  when  you  voted  last. — A.  Lowe  was  one  and  Garfield  another. 
I  don't  know  tvhat  offices  they  tvere  running  for  ;  I  voted  in  November. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
what  Wallace  Toney  told  you. — A.  It  is  true. 

Tyson  Moore,  1297  : 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
were  candidates,  and  when  you  last  voted. — A.  William  M.  Lowe,  Garfield  and  Arthur; 
Garfield  was  running  for  President;  I  don't  know  tvhat  Arthur  or  Lowetvas  running  for  ; 
I  voted  in  November. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
what  Wallace  Toney  told  you. — A.  It  is  true. 

G.  Chapman,  1301 : 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 


124  DIGEST  OF  ELECTION  CASES. 

■were  candidates,  and  the  last  time  you  voted. — A.  I  can't  state  the  names  of  all  I  voted 
for;  I  voted  for  Mr.  Lowe  for  one;  I  don't  know  ichat  office  hewas  running  for. 

G.Adams,  1306: 

Q.  State  the  names  of  all  the  persons  you  voted  for,  and  the  offices  for  which  they 
"were  candidates.  What  time  did  you  vote  ? — A.  Mr.  Lowe  is  the  only  one  I  can  recol- 
lect.    /  don't  knoic  what  office  he  was  running  for.     I  voted  in  November. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
what  Wallace  Toney  told  you. — A.  It  is  true. 

Caleb  Tonej,  1307 : 

In  November  I  aimed  to  vote  for  William  M.  Lowe  ;  I  didn't  read  the  names  of  all 
I  voted  for ;  I  don't  know  the  offices  for  tchich  they  tvere  candidates. 

Q.  Can  you  read  ? — A.  No,  sir. 

Q.  State  if  it  is  not  true  that  you  don't  know  what  ticket  you  voted  except  from 
what  Wallace  Toney  told  you. — A.  It  is  true. 

Wash  Lund}',  1308 : 

Q.  When  did  you  vote ;  for  whom  did  you  vote  ?  State  the  names  of  all  the  men  you 
voted  for  and  the  offices  for  which  they  were  candidates. — A.  I  voted  last  year;  I  don't 
remember  the  month;  I  aimed  to  vote  for  Lowe  ;  I  don't  remember  the  names  of  any 
except  Mr.  Lowe ;  /  don't  knotv  uihat  office  he  teas  running  for. 

Q.  Is  It  not  true  that  you  don't  know  what  ticket  you  voted  on  November  2, 1880  t — 
A,  It  is. 

Eichard  Toney,  1309 : 

Q.  State  when  you  voted  last,  who  you  voted  for,  and  for  what  offices  they  were 
running. — A.  November ;  I  voted  the  ticket  Wallace  Toney  gave  me ;  I  don't  know 
what  was  on  it. 

Jim  Lankford,  1313 : 

Q.  Is  it  not  true  that  you  don't  know  who  you  voted  for? — A.  I  know  nothing  ex- 
cept what  I  was  told. 

Q.  State  the  names  of  the  persons  yoii  voted  for,  and  the  offices  for  which  they  were 
running. — A.  I  voted  for  Mr.  Lowe.     I  don't  know  what  office  he  was  running  for. 

Q,  Can  you  read  t — -A.  No,  sir. 

Mingo  Lanier,  1317 : 

Q.  State  the  names  of  all  persons  you  voted  for  and  the  offices  for  which  they  were 
candidates. — A.  I  just  voted  for  Lowe  ;  don't  know  what  he  was  running  for, 

Q.  How  do  you  know  what  kind  of  ticket  it  was  T — A.  I  don't  know,  because  I  could 
not  read. 

Abram  Brown,  1322 : 

Q.  State  who  you  voted  for  and  the  offices  for  which  they  were  running. — A.  Mr. 
Lowe  ;  /  don't  know  what  office  he  was  running  for. 

Q.  How  do  you  know  who  you  were  voting  for  ? — A.  The  man  who  handed  it  to  me 
said  it  was  a  United  States  ticket. 

Q.  Isit  not  true  that  jrou  do  not  know  what  kind  of  a  ticket  you  voted  T — A.  It  is 
true ;  only  so  far  as  I  was  told. 

Ben  Lewis,  1327 : 

Q.  State  who  you  voted  for  and  the  offices  for  which  they  were  candidates,  and 
when  you  voted  last. — A.  I  voted  for  Lowe ;  I  don't  know  that  I  voted  for  any  one 
else;  I  don't  knoto  ichat  office  he  tvas  running  for  ;  I  don't  know. 

B.  Eldridge,  1273 : 

Q.  State  where  you  voted  last,  who  you  voted  for,  and  for  what  offices  they  were 
running. — A.  November;  Lowe;  don't  know  for  what  offices  they  were  running  for. 

Q.  Is  it  not  true  you  do  not  know  what  ticket  you  voted  except  what  Wallace  told 
you  f — A.  It  is, 

Anthony  Wilkins,  11577 : 

Q.  Do  you  know  what  office  Colonel  Lowe  was  running  for,  and  whether  anybody 
else  was  running  on  the  ticket  you  voted  ? — A.  I  do  not  know. 

A.  Echols,  1285 : 

Q.  Do  you  know  what  office  Colonel  Lowe  was  running  for  f — A.  I  didn't  know. 


I 


LOWE    VS.    WHEELER.  126 

Q.  Would  you  recognize  tlie  ticket  you  voted  on  that  day?— A.  Yes. 

Q.  How  would  you  know  it? — A.  By  the  difference  of  the  tickets. 

Q.  Please  tell  me  what  that  difference  is. — A.  I  judge  by  the  leading  man  that  gave 
me  the  ticket. 

Q.  Was  the  said  ticket  handed  to  you  folded  or  unfolded  ? — A.  Folded. 

Q.  You  don't  know,  then,  from  your  own  personal  knowledge,  what  ticket  it  was 
he  gave  you  and  who  you  voted  for? — A.  I  know  nothing  but  what  was  told  me. 

We  submit  that  it  i3  not  the  right  of  the  contestant  to  demand  that 
the  votes  of  these  men,  who  swear  they  do  not  know  for  what  office  he 
was  a  candidate,  shall  on  their  testimony  be  counted  for  him  as  Eepre- 
seutative  in  Congress. 

Next  comes  the  procession  of  77  colored  Eepublicans  who  only  knew 
by  hearsay  whether  they  voted  for  the  Greenbacker  Lowe  or  the  Dem- 
ocrat Wheeler.  The  following  is  a  statement  of  their  names  and  of  the 
pages  on  which  their  testimony  is  to  be  found.  Twenty  testify  that 
their  tickets  were  handed  to  them  folded  up,  and  they  only  knew  their 
contents  bv  hearsay,  viz : 

Fennell,  1204 ;  Lanier,  1266 ;  Fennell,  1268 ;  Davis,  1270 ;  Law,  1277 ; 
Holding,  1278;  Horton,  1278;  Johnson,  1279;  Holding,  1279;  Williams, 
1280;  Wiggins,  1281;  Jones,  1282;  Chapman,  1283;  Holding,  1286; 
Lanier,  1309;  Toney,  1309;  Fennell,  1320;  Eice,  1323;  Taylor,  1333; 
Love,  1339. 

Fifty-seven  testify  that  they  only  knew  by  hearsay  for  whom  they 
voted  : 

Holmes,  1269  ;  Horton,  1271 ;  Erwin,  1271 ;  Ware,  1272 ;  Toney,  1273  ; 
Mason,  1274;  Go  wens,  1274;  Lanier,  1290;  West,  1291 ;  Walbridge, 
1292;  Farley,  1293;  James,  1295;  McVay,  1296;  Holding,  1297; 
Slaughter,  1298;  Jamar,  1299;  Lundy,  1300;  Thompson,  1300;  Patten, 
1301;  Taylor,  1302;  Johnson,  1303 ;  Tonev,  1304;  Miller,  1306;  Eag- 
land,  1307;  Martin,  1310;  Hunter,  1311;  Madkins,  1311 ;  Caver,  1312: 
jWatkins,  1313;    Dandridge,     1314;    Eodgers,  1314;    Madkins,  1315; 

.ellv,  1315;  Eobinson,  1316;  McDonald,  1316;  Eobertson,  1317;  Bea- 
lle,  1318 ;  Holding,  1319 ;  Kelly,  1319 ;  Jordan,  1321 ;  Turner,  1322 ; 
^Bond,  1323;  Smith,  1323 ;  Smith,  1324;  Lanier,  1325 ;  Tate,  1325; 
Kibble,  1326;  Gladdis,  1327;  Harbert,  1329;  Clay,  1330;  Kibble,  1331; 
McCrary,  1331 ;  Scruggs,  1332  ;  Jordan,  1333 ;  Eagland,  1335  ;  Wiggins, 
1336 ;  Toney,  1338. 

The  attempt  to  impeach  the  returns  of  Lanier's  precinct,  and  to 
gather  up  for  the  contestant  128  votes  by  means  of  these  depositions, 
is  a  failure.  If  the  contestant  had  in  his  notice  of  contest  laid  a  founda- 
tion for  claiming  and  proving  these  votes ;  if  he  had  in  fact  proved 
them ;  if  his  depositions  had  not  been  inadmissible  because  not  cer- 
tified; if  they  had  not  been  rendered  inadmissible  by  the  refusal  of  the 
notary,  on  the  motion  of  the  contestant,  to  permit  the  contestee  to 
cross-examine  the  witnesses,  then  the  contestant  might  have  some  ground 
on  which  to  stand.  But  instead  of  proving  that  128  votes  were  cast  for 
him,  he  has  only  proved  that  17  were  cast  for  him;  that  is  to  say, 
he  has  proved  39  less  than  the  number  (56)  given  him  by  the  precinct  re- 
turns. The  result  is,  that  instead  of  sweeping  away  the  entire  returns 
and  then  gathering  up  for  himself  128  votes  outside  of  the  returns,  so  as 
to  make  the  vote  of  Lowe  128  and  for  Wheeler  none,  he  has  reduced 
his  own  vote  from  56  to  17,  leaving  for  Lowe  17  and  Wheeler  142. 

In  support  of  his  attack  on  these  polls,  the  contestant  asserts  that 
the  inspectors  were  all  Democrats. 

But  the  requirement  of  the  statute  is  that  the  county  judge  shall  ap- 
point "  three  inspectors  for  each  place  of  voting,  two  of  whom  shall  be 
members  of  opposing  political  parties,  if  practicable."    This  relates  only 


126  DIGEST    OF   ELECTION   CASES. 

to  the  original  appointments.  There  is  a  further  provision  for  a  selec- 
tion, by  the  inspectors  themselves,  to  fill  a  vacancy  at  the  polls.  But 
there  is  ho  requirement,  express  or  implied,  that,  in  filling  such  a  va- 
cancy, the  inspectors  shall  look  to  a  representation  of  opposing  political 
parties  on  the  board. 

Now,  the  provision  for  the  original  appointments  of  these  inspectors 
is  not  mandatory,  but  is  merely  directory.  There  is  no  provision  that 
the  election  shall  be  void  upon  failure  to  comply  with  the  requirement. 
The  fact  that  the  observance  of  the  requirement  is  made  to  depend  on 
the  practicability  of  making  such  appointments,  of  which  practicability 
the  appointing  power  must  of  course  be  the  judge,  negatives  its  man- 
datory character.  But  then,  aside  from  that,  there  is  in  the  nature  of 
the  provision  nothing  to  justify  the  rejection  of  a, return  for  the  reason 
that  the  county  judge  failed  to  give  the  opposing  political  parties  rep- 
resentation on  the  board  of  inspectors. 

Mr.  McCrary  correctly  states  the  general  rule,  in  sections  126  and 
200,  as  follows : 

If,  as  in  most  cases,  tlie  statute  simply  provides  that  certain  acts  or  things  shall  be 
done,  within  a  particular  time,  or  in  a  particular  manner,  and  does  not  declare  that 
their  performance  is  essential  to  the  validity  of  the  election,  then  they  will  be  re- 
garded as  mandatory  if  they  do,  and  directory  if  they  do  not,  afl'ect  the  merits  of 
the  election. 

Unless  a  fair  construction  of  the  statute  shows  that  the  legislature  intended  com- 
pliance with  the  provisions  in  relation  to  the  manner  to  be  essential  to  the  validity 
of  th6  proceedings,  it  is  to  be  regarded  as  directory  merely. 

But  then,  whether  the  provision  for  the  original  appointment  was,  or 
was  not,  a  mandatory  requirement  that  the  opposing  political  parties 
should  be  represented  on  the  board,  it  is  certain  that  the  provision  for 
filling  vacancies  at  the  polls  embraces  no  requirement,  direct  or  in- 
direct, express  or  implied,  that  the  vacancies  shall  be  so  filled  as  to 
secure  representation  to  the  opposing  political  parties  on  the  board  of 
inspectors. 

So  much  for  the  law.  Now  for  the  fact.  The  fact  is  that  Horton,  the 
inspector  against  whom  the  complaint  is  aimed,  had  long  been  a  Repub- 
lican, and  there  is  no  proof  showing,  or  tending  to  show,  that  he  would 
not  have  voted  for  a  Republican  candidate  for  the  office  of  Representa- 
tive in  Congress  at  this  election  if  there  had  been  such  a  candidate. 
The  fact  that  he  did  not  vote  for  the  contestant  affords  not  the  slightest 
evidence  that  he  was  not  a  Republican. 

It  is  true  that  the  contestant's  witness,  Hertzler,  says,  on  pages  178 
and  180 : 

Q.  Did  Frank  Horton  try  to  get  people  to  vote  the  Democratic  ticket  f — A.  No,  sir. 
Frank  Horton,  I  thought,  was  a  Republican,  but  from  his  actions  I  don't  know  he  was 
anything;  he  just  simply  sat  there  and  didn't  say  anything.  I  have  only  found  out 
since  that  he  was  a  Democrat. 

Q.  How  did  you  find  out  he  was  a  Democrat  since  the  election  ? — A.  I  found  out  by 
my  neighbors  that  Frank  Horton  was  a  Democrat. 

Q.  Was  it  not  generally  understood  before  the  election  that  he  was  a  Republican  ? — 
A.  Before  the  election  I  didn't  know  him  at  all. 

Q.  You  are  pretty  well  satisfied  that  the  charge  against  Frank  Horton  is  untrue? — 
A.  Yes,  sir.     The  box  was  not  tampered  with  while  the  election  was  going  on. 

Q.  Have  you  any  information  that  would  lead  you  to  believe  that  Judge  Richard- 
eon,  or  the  sheriflF  of  this  county,  or  the  clerk,  had  any  intimation  that  Frank  Horton 
■was  not  a  sound  Republican  f — A.  No,  sir;  I  don't. 

Q.  Have  you  any  reason  to  believe,  except  the  charges  that  other  negroes  bring 
against  Frank  Horton,  that  he  is  not  a  Republican  ? — A.  Well,  I  don't  understand  you ; 
well,  I  have  no  reasons  that  he  is  not  a  Republican.  He  is  a  Democrat,  is  what  they 
tell  me.    I  know  nothing  but  what  they  tell  me. 


LOWE    VS.    WHEELER.  127 

But  J.  F.  Lauier  says,  on  page  561 : 

Q.  Is  it  true  that  all  the  iuspectors  here  are  avowed  Democrats  ? — A.  I  believe  that 
Captain  High  aiul  Mr.  Baldridge  are  Democrats,  but  Frank  Horton  has  acted  with 
^he  Democrats  in  the  last  two  elections,  but  always  claims  to  be  a  Republican. 

And,  on  page  563,  B.  C.  Lanier  says: 

Q.  What  is  your  knowledge  of  Frank  Horton's  politics  ? — A.  That  he  is  a  Repub- 
lican, but  has  acted  with  the  Democrats  in  the  last  two  elections. 

It  is  also  suggested,  as  a  ground  for  the  impeachment  of  these  returns, 
that  there  were  eleven  more  ballots  than  voters. 

Kow,  the  fact  is  that  the  ballot-box  did  contain  11  ipore  tickets  than 
the  poll-list  contained  names,  and  the  inspectors  deducted  9  from 
Wheeler's  vote  and  2  from  Lowe's,  because  9  Democratic  tickets  and  2 
Kepublican  tickets  were  folded.  This  is  shown  on  page  197  of  the  rec- 
ord. 

The  law  of  Alabama  does  not  authorize  inspectors  to  destroy  super- 
numerary ballots  before  counting  out  the  votes  cast  for  the  several  can- 
didates. In  this  respect  it  diflers  from  the  laws  of  many  other  States. 
At  the  close  of  the  polls  the  votes  for  the  rejected  candidates  were 
therefore  counted,  and  thfe  statement  of  votes  printed  on  pages  196  and 
197  made  out  first.  Afterwards  the  number  of  votes  was  compared 
with  the  number  of  voters,  and  the  supernumerary  ballots  were  de- 
ducted from  the  vote  of  Lowe  and  Wheeler  respectively.  The  proof  of 
this  is  to  be  found  on  page  177  of  the  record. 

The  law  requires  the  inspectors  to  send  up  the  lists  of  votes  and 
voters,  duly  certified.  They  obeyed  the  law  in  this  case.  The  lists  are 
printed  ou  pages  196  and  197  of  the  record.  Thej"  show  that  the  voters' 
names  aggregated  188,  and  that  the  votes  in  the  box  aggregated  199; 
that  the  excess  of  votes  over  voters  was  11 ;  that  the  votes  in  the  box 
numbered  57  for  Lowe  and  142  for  Wheeler ;  that  they  deducted  2  of 
the  supernumerary  ballots  from  Lowe's  vote,  and  9  from  Wheeler's,  and 
that  the  vote,  so  counted,  stood :  for  Lowe,  55,  and  Wheeler,  133.  But 
the  county  canvassers  overlooked  the  last  paragraph  of  this  statement, 
and  counted  for  Lowe  bQ^  and  for  Wheeler  142.  These  facts  deprive 
the  contestant  of  one  vote  and  the  contestee  of  nine.  But  they  have 
no  other  effect  on  the  case. 

The  deposition  of  William  Wallace,  alias  Wallace  Toney,  is  offered 
to  prove  that  128  votes  were  cast  for  the  contestant,  and  also  to  impeach 
the  returns.  His  deposition  is  inadmissible,  for  the  reasons  which  ex- 
clude the  others.  But  he  is  himself  impeached  by  W.  F.  Baldridge,  on 
page  549,  and  by  W.  E.  Jordan,  on  page  566.  Baldridge's  character  is 
shown  to  be  reliable  by  the  contestant's  witness,  Hertzler,  on  page  179. 
The  contestant  afterwards  examined  126  witnesses,  and  made  no  attempt 
to  vindicate  the  character  of  Wallace. 

In  support  of  his  attack  on  these  returns  the  contestant  also  charges 
that  there  was  delay  in  the  opening  of  the  polls  and  in  the  appearance 
of  the  registrar.  Hertzler's  assertions  on  this  point  are  overwhelmingly 
answered  by  the  contestee's  witnesses,  Baldridge,  High,  J.  F.  Lanier, 
B.  C.  Lanier,  and  Jordan. 

J.  Hertzler  testifies,  page  174: 

Q.  Why  were  not  the  polls  opened  at  that  box  sooner? — A.  They  were  not  opened 
on  account  of  the  registrar  not  being  there,  and  there  was  a  difficulty  among  the  in- 
spectors as  lo  the  appointing  a  registrar.  Mr.  Baldridge,  one  of  the  inspectors,  said 
that  he  wouldn't  open  the  polls  unless  the  registrar  was  there,  wiiile  the  otliers  claimed 
that  they  could  appoint  a  registrar;  we  had  the  code  there,  which  read  that  if  the 
assistant  registrar  wasn't  there  the  inspectors  could  appoint  a  registrar  who  may 
qualify  for  that  day,  and  that  word  Mr.  Baldridge,  the  principal  inspector,  claimed 


128  DIGEST    OF    ELECTION    CASES. 

that  he  didn't  know  that  any  one  there  could  qualify ;  that  that  word  meant — he  held 
that  word  meant — that  he  would  have  to  go  before  the  justice  of  the  peace  or  the 
registrar,  who  was  in  Huntsville. 

Q.  Is  it  not  true  that  you  endeavored  to  get  the  inspectors  to  open  the  polls  before 
they  did  open  them  f — A.  Yes,  sir ;  we  tried  to  get  the  inspectors  to  appoint  a  registrar 
and*  qualify  him  until  the  registrar  came  that  was  appointed  ;  that  Mr.  Baldridge  ob- 
igpted  to;  said  that  it  couldn't  be  done,  and  finally  Mr.  Bur  well  Lanier,  sr.,  the  re- 
"Kruing  officer,  said  that  if  Mr.  Baldridge,  or  any  of  the  inspectors,  appointed  a  man, 
^at  he  would  be  responsible;  that  it  was  right ;  and  then  Mr.  Baldridge  did  appoint 
Mr.  McDonnell  and  put  him  right  to  work,  but  he  was  not  qualified  at  all. 

W.  p.  Baldridge,  548 : 

Q.  State  where  you  were  on  November  2,  1880  ;  and  if  you  held  an  office  that  day, 
please  state  it. — A.  I  was  at  Laniei-'s  precinct,  Madison  County;  was  one  of  the 
inspectors. 

Q.  What  time  did  the  polls  open  or  what  time  were  they  opened.  ? — A.  The  polls 
were  opened  foruially  a  few  minutes  after  eight  o'clock. 

Q.  Were  the  polls  opened  by  proclamation  ?— A.  They  were. 

Q.  Was  there  any  delay  in  voting  after  the  polls  were  opened  ? — A.  There  was  about 
two  hours. 

Q.  What  caused  the  delay  ? — A.  The  registrar  was  not  there,  and  it  became  neces- 
sary to  appoint  one  ;  and  after  examining  the  code  of  Alabama,  I  found  that  a  regis- 
trar could  be  appointed  after  ten  o'clock.  After  consultation  with  the  other  inspect- 
ors we  appointed  one. 

Q.  Who  was  appointed,  and  by  whom  was  he  appointed  ? — A.  After  applying  to  and 
requesting  George  Allen,  William  Allen,  and  John  Jordan  ^d  others,  including  Frank 
Hertzler,  I  finally  obtained  the  services  of  Archibald  McDonald  to  act  as  registrar. 

Q.  Did  any  one  send  for  Wm.  B.  Matkins?  If  so,  who  sent  for  him  and  ^Yhen  did 
you  send  ? — A.  William  B.  Matkins  being  the  regular  appointed  registrar,  and  not 
being  present,  I  did,  about  nine  o'clock,  send  one  Napoleon  Powell  to  the  residence  of 
said  Matkins  to  ascertain  the  reason  of  his  non-appearance.  He  lives  about  two  and 
a  half  miles  from  Lanier's. 

Q.  Doyoiikuow  why  W.  B.  Matkins  did  not  come  to  Lanier's  when  the  polls  opened  t 
— A.  He  informed  me  that  he  had  gone  to  Pond  beat  the  day  before ;  that  his  horse 
got  loose,  and  was  unable  to  get  home  that  night,  was  the  reason  for  his  non-attend- 
ance at  the  polls  in  time. 

W.  H.  High,  one  of  the  inspectors,  554,  J.  F.  Lanier,  the  United 
States  deputy  marshal,  559,  B.  0.  Lanier,  563,  and  W.  E.  Jordan,  565, 
corroborate  the  statements  of  Baldridge. 

The  contestant,  in  further  support  of  his  attack  on  the  integrity  of 
the  Lanier  returns,  charges  that  twisted  ballots  were  voted,  and  that 
the  box  was  removed  and  tampered  with  before  the  votes  were  counted. 

It  is  true  that  the  law  of  Alabama  requires  the  inspectors  to  proceed 
with  the  precinct  canvass  as  soon  as  the  polls  close.  But  the  facts  were 
that  it  was  not  practicable  to  make  the  precinct  canvass  in  the  open 
blacksmith  shop,  where  the  election  was  held,  for  neither  lights  nor  fire 
could  be  maintained  in  the  shop.  The  inspectors  were  unable  to  secure 
the  use  of  Lanier's  store,  which  was  the  building  nearest  to  the  black- 
smith shop,  for  the  purpose  of  making  the  canvass,  and  they  were 
unable  to  obtain  the  use  of  Lanier's  house  until  after  the  family  had 
taken  supper. 

Hertzler'a statements  on  this  point  are  completely  met  by  Baldridge, 
High,  Lanier,  and  Kibble. 

W.  F.  Baldridge  says,  548,  549,  551 : 

Q.  What  kind  of  a  house  was  the  election  held  in  T — A.  A  blacksmith  shop  without 
any  floor  ;  the  planks  were  put  on  upright  and  were  secured  so  as  to  leave  open  cracks 
between  them ;  the  cracks  have  never  been  covered  with  strips ;  it  has  a  large  double 
door  reaching  from  roof  t«  ground.  We  could  not  have  any  light  at  all  when  the 
wind  was  stirring,  and  we  could  not  have  any  fire  on  account  of  the  smoke,  there  being 
no  fireplace  except  the  furnace  used  by  the  blacksmith  ;  we  tried  in  the  morning  to 
have  fire,  but  had  to  let  it  go  out. 

Q.  Would  it  have  been  practicable  or  even  possible  for  you  to  have  counted  out  the 
ballots  in  that  blacksmith's  shop  that  night  T — A.  It  would  not  have  been  practicable 
or  possible,  from  the  fact  that  we  could  not  have  light  or  fire,  and  it  was  cold,  too 
cold  to  stay  in  there  without  fire. 


LOWE    VS.    WHEELER.  129 

Q.  Was  there  any  other  shelter  which  you  could  have  obtained  for  holding  the  elec- 
tion than  the  place  where  you  did  hold  it  ? — A.  There  was  not. 

Q.  Did  you  count  out  the  ballots  at  the  most  convenient  place  near  the  place  where 
the  election  was  held  ? — A.  Mr.  B.  C.  Lanier's  house  was  the  most  convenient  place 
we  could  get,  and  he  was  the  returning  officer  for  said  election. 

Q.  Who  were  present  when  the  ballots  were  counted  out? — A.  John  Hertzler,  tj^ 
supervisor;  B.  C.  Lanier  and  James  McDonald,  clerks;  W.  E.  Jordon,  deputy  sheriff; 
William  M.  High,  Frank  Horton,  and  myself,  inspectors;  and  Aleck  Kelly,  who  wot 
the  only  one  present  that  was  not  an  officer. 

Q.  Who  called  out  the  votes  ? — A.  William  M.  High  and  myself. 

Q.  State  how  you  found  the  ballots  in  the  box,  and  state  Vhether  or  not  ^ou  found 
any  ballots  rolled  or  twisted  together. — A.  There  were  no  ballots  found  in  the  box 
that  were  rolled  or  twisted  together.  There  were  in  two  or  three  instances  two  and 
three  ballots  together,  not  rolled  or  twisted,  but  in  a  condition  as  if  they  might  have 
slipped  together  in  the  shaking  the  box.  With  one  exception  there  were  two  ballots 
folded  together  that  indicated  they  were  voted  together,  and  never  more  than  three 
were  found  together. 

Q.  State  the  position  of  the  three  ballots  which  you  say  you  found  together. — A. 
They  were  folded  separately,  and  might  have  slipped  together  in  shaking  the  box. 

Q.  Were  the  three  ballots  you  refer  to  as  being  found  together  in  such  a  condition 
that  they  would  fall  apart  without  unfolding  them  ? — A.  Those  that  I  took  out  could 
have  done  so. 

Q.  Were  or  not  any  ballots  found  together  making  such  a  bulk  that  they  could  not 
easily  have  been  passed  through  the  hole  in  the  box  through  which  the  ballots  were 
passed  as  the  voting  took  place  f — A.  There  were  none. 

Q.  You  stated  that  you  found  two  ballots  in  the  box  which  were  folded  together. 
Please  state  what  name  was  on  these  two  tickets  for  Congress. — A.  The  ballots  to 
which  I  have  referred  were  folded  together  closely  three  times,  and  they  were  Lowe 
ballots.  There  were  other  ballots  that  were  folded  so  that  they  might  have  been 
voted  together. 

Q.  Whose  name  for  Congress  was  on  the  other  ballots  you  refer  to  as  being  in  a  con- 
dition indicating  that  they  might  or  might  not  have  been  voted  together  ? — A.  Wheel- 
er's name  was  on  them  in  two  or  three  instances,  and  Wheeler's  name  was  on  the  three 
ballots  which  I  have  named  as  being  found  together. 

Q.  Do  I  understand  you  to  say  that  the  only  instance  when  the  votes  were  folded 
together  so  closely  as  to  make  it  appear  that  they  were  certainly  voted  together  was 
the  instance  you  mention  of  the  two  Lowe  ballots? — A.  It  is  because  it  was  the  only 
instance  in  which  they  could  not  have  slipped  together  in  the  bo±.  I  refer  to  those 
that  I  took  out  myself.     I  took  out  probably  more  than  half. 

Q.  If  such  statement  has  been  made,  that  there  were  ft)und  in  the  box  six  or  seven 
ballots  rolled  or  twisted  together,  please  state  if  said  statement  was  true  or  false. — 
A.  It  is  false. 

W.  M.  High,  555,  556,  557,  558 : 

Q.  What  kind  of  a  house  was  the  election  held  in  ? — A.  A  blacksmith  shop.  It  is  a 
house  constructed  of  planks  set  up  endwise,  running  from  roof  to  the  ground,  with 
good  large  cracks  between  the  planks,  with  large  folding  doors  that  extended  from 
the  roof  to  the  ground — no  floor,  no  place  for  fire,  only  a  forge,  and  was  very  disagree- 
able. 

Q.  Would  it  have  been  practicable  or  even  possible  for  you  to  have  counted  out  the 
ballots  in  that  blacksmith  shop  that  night  ? — A.  No,  sir  ;  I  think  not,  from  the  fact 
that  the  wind  was  blowing,  and  we  could  not  have  kept  a  lamp  or  a  candle  burning 
during  the  time. 

Q.  Was  there  any  other  shelter  which  you  could  have  obtained  for  holding  the  elec- 
tion than  the  place  where  you  did  hold  it  ? — A.  None  that  I  know  of. 

Q.  When  the  polls  closed,  why  did  you  not  immediately  count  out  the  ballots? — A. 
Because  we  could  not  count  them  in  the  house  in  which  we  held  the  election,  and 
could  get  no  other  place  until  after  supper. 

Q.  What  buildings  are  there  in  the  vicinity  of  Ljmier's  voting  place  ? — A.  The  black- 
smith shop  in  which  the  election  was  held ;  John  F.  Lanier's  store,  about  fifty  yards 
from  the  shop  ;  Mr.  Lanier's  residence,  about  two  hundred  and  seventy- five  yards  from 
the  shop.  These  were  the  only  buildings,  except  some  cabins  an^  out-houses  and  gin- 
house.  The  nearest  other  buildings  are  nearly  a  mil^off,  except  a  church,  which  ig 
within  oue-half  mile  of  the  place.  ■■ 

Q.  What  place  did  you  succeed  in  getting  in  which  to  count  out  the  ballots  ? — A. 
Mr.  Lanier's  parlor. 

Q.  How  did  you  happen  to  go  there  ? — A.  By  invitation.  Mr.  Lanier  proposed  if 
we  would  take  supper  with  him  that  we  could  use  his  parlor  afterward  in  which  to 
count  out  the  votes.  ^  ^    , 

H.  Mis.  35 9 


130  DIGEST    OF   EIECTION    CASES. 

Q.  Why  did  you  not  come  back  to  the  store  to  count  out  the  ballots  ? — A.  Because 
Mr.  John  F.  Lanier  said  that  we  had  had  the  use  of  his  storehouse  all  day,  and  it  was 
unreasonable  to  ask  it  that  night ;  the  registrar  had  used  it. 

Q,  Was  not  Mr.  Lanier's  house  the  next  nearest  idace  where  the  votes  could  have 
been  counted  out  ? — A.  It  was. 

Q.  Where  did  you  leave  the  ballot-box  when  you  went  to  supper  ?— A.  In  the  back 
or  side  lock-room  of  Mr.  John  F.  Lanier's  store. 

Q.  Who  suggested  your  putting  it  there  ? — A.  Mr.  Hertzler,  I  think. 

Q.  Did  you  lock  up  the  box  in  that  room  ? — A.  I  locked  the  door  of  the  room  after 
I  put  the  box  into  it. 

Q.  Who  was  with  you  when  you  locked  the  box  in  that  room  ? — A.  Mr.  Hertzler. 

Q.  Did  you  go  into  the  room  to  put  the  box  into  it  ? — A.  I  did  not ;  I  reached  in 
and  set  the  box  upon  a  barrel  beside  the  door. 

Q.  What  did  you  then  do  ? — A.  I  locked  the  door,  and  soon  after  myself,  Mr.  Hertz- 
ler, B.  C.  Lanier,  sr.,  J.  S.  McDonald,  and,  I  think,  B.  C.  Lanier,  jr.,  and  perhaps  some 
others,  went  up  to  Mr.  Lanier's  to  supper. 

Q.  Who  kept  the  key  to  the  side  room  into  which  you  put  the  ballot-box  ? — A.  I 
did. 

Q.  What  kind  of  a  lock  and  door  did  the  side  room  have  ;  was  it  a  substantially 
built  door  and  a  good  lock,  or  what  were  they  ? — A.  It  is  a  strong  lock  and  door. 

Q.  Was  there  any  other  way  to  get  into  that  room  except  through  that  door? — A. 
There  was  another  door  through  which  freight  was  passed  into  the  room,  and  which 
fastened  on  the  inside  with  a  bar,  and  could  not  be  entered  from  without,  except  being 
first  opened  on  the  inside. 

Q.  Whom  did  you  leave  in  the  store  when  you  went  to  the  house  ? — A.  Mr.  John 
F.  Lanier  and  several  negroes. 

Q.  After  supper,  what  did  you  do? — A.  Mr.  Hertzler,  myself,  Mr.  B.  C.  Lanier,  sr., 
and  others  came  down  into  the  store  together.  I  unlocked  the  door  of  the  side  room 
and  took  out  the  ballot-box,  and  we  went  back  to  the  parlor  and  counted  out  the 
votes. 

Q.  Did  you  iind  the  ballot-box  in  precisely  the  same  position  as  you  left  it  f — A.  I 
did. 

Q.  Do  you  think  it  possible  that  the  ballot-box  could  have  been  tampered  with 
while  you  was  at  supper  ? — A.  No,  sir ;  I  do  not. 

Q.  Do  you  know  John  F.  Lauier  ? — A.  I  do,  sir. 

Q.  What  is  his  standing  in  this  community  ? — A.  It  is  good. 

Q.  From  your  knowledge  of  the  character  of  John  F.  Lanier  and  his  standing  in 
this  community,  would  you  believe  that  he  would  be  guilty  of  any  dishonorable  thing 
about  elections  T — A.  I  would  not. 

Q.  State  who  went  to  Mr.  Lanier's  parlor  with  you. — A.  Mr.  Hertzler,  William  F. 
Baldwin,  Frank  Horton,  B.  C.  Lanier,  jr.,  J.  S.  McDonald,  Walter  Jordan,  and  Alex. 
Kelly.     If  there  were  any  others,  I  don't  remember  them. 

Q.  State  who  first  opened  the  box  after  the  polls  were  closed. — A.  Myself  or  Mr. 
Baldridge  ;  I  don't  remember  which. 

Q.  Where  was  the  box  when  it  was  opened? — A.  On  a  table  in  Mr.  Lanier's  parlor. 

Q.  Who  were  present  when  the  vote  was  counted? — A.  Wm.  F.  Baldridge,  Frank 
Horton,  John  Hertzler,  Walter  Jordan,  B.  C.  Lanier,  jr.,  J.  S.  McDonald,  Alex.  Kelly, 
and  myself. 

Q.  State  how  you  found  the  ballots  in  the  box,  and  state  whether  or  not  you  found 
any  ballots  rolled  or  twisted  together, — A.  The  box,  as  I  remember,  was  nearly  full. 
I  remember  through  the  day  that  I  had  to  shake  the  box  several  times  to  get  the  bal- 
lots in.  They  would  accumulate  under  the  hole  in  the  center  of  the  box,  and  I  had  to 
shake  them  down,  and  there  were  no  ballots  found  rolled  or  twisted  together.  There 
were  several  bunches  of  tickets  found  together,  but  there  was  no  bunch  with  more 
than  three  tickets  together. 

Q.  You  speak  of  three  tickets  being  together.  Were  they  together  in  such  a  man- 
ner as  to  show  that  they  were  voted  together,  or  were  they  together  in  such  a  man- 
ner as  would  indicate  that  they  got  together  in  shaking  the  box  ? — A.  There  were  two 
bunches  that  I  am  satisfied  were  voted  together — three  in  one  and  two  in  the  other. 
There  were  others  that  might  have  been  voted  or  may  have  gotten  together  in  the 
box. 

Q.  Was  there  any  other  bunch  of  three  tickets  together  as  they  came  out  of  the 
box  ? — A.  My  recollection  is  that  there  were  two  other  bunches  of  three  tickets  that 
were  together,  but  not  folded  together. 

Q.  Did  you  at  any  time  find  six  ballots  together  in  the  box,  or  did  six  ballots  at  any 
time  come  out  of  the  box  together? — A.  There  were  not  six  ballots  found  together  in 
the  box  at  any  time.     Six  ballots  did  not  come  out  at  any  time  together. 

Q.  Are  you  perfectly  certain  that  in  no  case  either  six  or  seven  ballots  came  out  of 
the  box  together  ? — A.  I  am  perfectly  certain  that  in  no  case  either  six  or  seven  bal- 
lots came  out  of  the  box  together. 


LOWE    VS     WHEELER.  131 

Q.  Do  you  know  whethei"  or  not  there  were  windows  in  that  room,  or  whether  the 
door  was  barred  on  the  inside  ? — A.  There  are  no  windows  to  the  room,  and  /  tried 
the  door  from  the  outside.     I  pushed  against  it  and  I  could  not  open  it. 

J.  F.  Lanier,  559,  560,  561: 

Q.  Where  was  the  ballot-box  put  while  the  inspectors  were  eating  supper  ? — A.  In 
the  side  room  of  the  store. 

Q.  What  persons  brought  the  box  to  your  store? — A.  I  don't  know  who  brought  it 
to  the  store.     Captain  High  brought  it  in. 

Q.  Wbat  did  he  do  with  it? — A.  He  put  it  into  the  side  room  and  locked  the  door. 

Q.  What  did  he  then  do? — A.  He  took  the  key  and  went  out  of  the  store. 

Q.  How  many  keys  are  there  to  your  side-room  door  ? — A.  Only  one. 

Q.  Is  there  any  way  to  get  into  that  side  room  except  through  the  door  that  Mr. 
High  locked  ? — A.  There  is  another  door  to  the  room  fastened  on  the  inside  by  a  bar. 

Q.    Was  that  door  which  teas  fastened  on  the  inside  fastened  that  night  f — A.  It  ivas. 

Q.  W^as  it  possible  for  any  one  to  have  entered  your  side  room  wliile  the  ballot-box 
was  in  there  except  by  going  through  the  door  that  Mr.  High  locked  ? — A.  Only  by 
breaking  the  front  door. 

Q.  Did  any  one  break  down  the  front  door  ? — A.  They  did  not. 

Q.  You  having  testified  that  no  one  broke  down  the  front  door,  please  say  now  if 
by  any  possibility  your  side  room  could  have  been  entered  except  through  the  door 
Mr.  High  locked  while  the  ballot-box  was  iu  there  withoutyour  detecting  it  ? — A.  No, 
they  could  not. 

Q.  How  long  did  you  stay  in  the  store  after  Mr.  High  and  the  other  gentlemen  went 
to  supper  ? — A.  About  half  an  hour. 

Q.  Did  anybody  go  into  the  side  room  during  that  half  hour  ? — A.  They  did  not. 

Q.  Did  you  leave  anybody  in  your  store  when  you  went  to  the  house  to  supper? — 
A.  I  did  not. 

Q.  What  did  you  do  with  the  key  to  your  store  when  you  went  to  supper? — A.  I 
put  it  into  my  pocket. 

Q.  Did  anybody  go  into  your  store  while  you  was  at  supper? — A.  They  did  not. 

Q.  When  you  returned  to  the  store  who  was  with  you  ? — A.  Captain  High,  Captain 
Hertzler.  J.  S.  McDonald,  B.  C.  Lanier,  jr.,  B.  C.  Lanier,  sr.,  and  others. 

Q.  Who  came  in  and  got  the  box  ? — A.  Captain  High. 

Q.  Did  you  see  him  unlock  the  door  of  the  side  room?— A    I  did. 

Q.  What  is  Alex.  Kelly's  politics  ? — A.  He  is  a  Republican. 

Q.  If  any  one  has  stated  that  while  you  was  at  supper  on  November  2,  1880,  he  saw 
two  men  go  into  your  store  by  the  door  nearest  to  your  father's  house,  was  such  state- 
ment true  or  fiilse? — A.  I  am  satisfied  that  no  one  went  into  my  store  while  I  was  at 
supper. 

Q.  Did  you  send  anybody  to  guard  your  store  while  you  were  at  supper? — A.  I  did. 

Q.  State  who  it  was,  and  what  you  told  him  to  do. — A.  It  was  Henry  Kibble,  and 
I  told  him  to  go  down  and  stay  about  the  store  until  I  came;  that  I  forgot  to  take  my 
money  out  of  the  drawer  that  night. 

Q.  Did  Henry  Kibble  go  iw<o</ie8<ore? — A.  He  did  not. 

Q.  Was  Henry  Kibble  at  the  store  when  you  came  down? — A.  He  was. 

Q.  Did  you  refuse  to  permit  the  officers  of  election  to  count  the  ballots  in  your  store  ? 
If  so,  why  ? — A.  I  did  not  make  a  positive  refusal.  I  told  them  that  I  suspended 
business  during  the  day  to  assist  the  register,  and  that  they  were  making  an  unrea- 
sonable request  of  me. 

Q.  If  you  had  suspended  business  during  the  day,  from  what  source  did  the  money 
which  you  left  in  the  drawer,  and  that  you  sent  Henry  Kibble  down  to  look  after? — 
A.  From  sales  on  days  previous  to  that. 

Q.  You  stated  that  the  door  opening  out  of  the  side  room,  which  is  fastened  by  a 
bar  inside,  was  fastened  while  the  ballot-box  was  in  there.  Have  you  any  special 
reasons  for  remembering  that  that  door  was  fastened  at  that  particular  time,  or  do 
you  state  it  because  you  habitually  keep  it  fastened  ? — A.  My  reason  is  this :  I  had 
gone  in  there  a  short  while  before  the  box  was  put  in  that  day  and  shut  and  fastened 
the  door,  and  no  one  had  gone  in  there  from  that  time  till  the  ballot-box  was  put  in, 
nor  until  the  next  day. 

H.  Kibble,  569 : 

Question.  State  your  name,  age,  occupation,  and  where  you  lived  on  November  2, 
1880. — A.  Henry  Kibble;  about  fifty  years ;  house  and  farm  hand ;  I  lived  with  B.  C. 
Lanier,  right  here. 

Q.  Did  you  see  J.  F.  Lanier  about  supper  time  on  the  night  of  the  election  ? — A.  I 
did. 

Q.  Did  he  tell  you  to  do  anything? — A.  He  told  me  just  about  supper  time,  in  the 
yard,  if  I  could  get  the  chance  to  come  to  the  store  and  set  upon  the  fence  until  he 
could  come  from  his  supper,  and  to  hail  him  when  he  did  come,  so  that  he  might  know 
that  I  had  been  here. 


132  DIGEST    OF    ELECTION    CASES. 

Q.  What  (lid  you  do  ? — A.  I  did  come  down  to  the  fence  near  the  corner  of  the  store 
and  staid  there  until  John  F.  Lanier  came  there. 

Q.  How  long  after  J.  F.  Lanier  told  you  to  go  to  the  store  did  you  go  to  the  store  f 
— ^A.  I  come  right  off. 

Q.  How  far  from  the  store  was  you  when  he  told  you  to  go  to  the  store  ? — A.  About 
two  hundred  yards. 

Q.  Did  anybody  go  into  the  store  while  you  was  there  ? — A.  No,  sir. 

Q.  Are  you  certain  about  that  ? — A.  Yes,  sir. 

Q.  Did  you  hear  any  noise  in  the  store  or  see  any  light  in  the  store  while  you  was 
there  ?— A.  I  did  not. 

One  explanation  of  the  large  vote  cast  for  the  contestee  at  this  pre- 
cinct is  that  many  colored  Republicans  having  no  Republican  candidate 
for  Congress  preferred  the  contestee  to  the  contestant.  This  is  shown 
by  the  proofs. 

J.  Hertzler,  a  witness  for  contestant,  183,  188 : 

Q.  I  believe  you  stated  yesterday  that  while  the  election  was  going  on  a  crowd  of 
colored  men  came  up  and  voted,  and  that  it  was  rumored  or  stated  that  the  leader  of 
these  colored  men  had  sold  out,  did  you  not  f — A.  I  so  understood  the  next  day. 

Q.  You  mean,  do  you  not,  by  selling  out,  that  this  colored  man  had  gone  back  upon 
the  Republican  party  ? — A.  That  is  what  I  understood ;  that  in  that  way  this  majority 
was  brought  about. 

Q.  Then,  on  the  next  day  after  the  election,  you  understood  that  this  majority  was 
brought  about  by  a  colored  man  inducing  an  entire  club  to  vote  the  Democratic 
ticket  ? — A.  Yes,  sir. 

Q.  Isn't  it  true,  Mr.  Hertzler,  that  you  would  think,  from  your  knowledge  of 
colored  men,  that  they  would  disposed  to  secrete  the  fact  of  having  voted  the  Demo- 
cratic ticket  if  they  had  been  censured  for  it? — A.  Well,  I  expect  they  would,  likely. 

Q.  It  is  true,  too,  of  your  knowledge  of  the  colored  men,  that  very  many  of-  them 
have  a  very  imperfect  idea  of  the  sanctity  of  an  oath  ? — A.  Yes,  sir. 

P.  McDaniel,  a  witness  for  contestant,  212 : 

Q.  It  is  true,  is  it  not,  that  any  colored  man  who  wanted  to  change  his  ticket  could 
do  so  as  he  passed  through  the  little  room  before  he  got  to  the  polls  ? — A.  After  he  en- 
tered the  door,  why,  if  he  saw  cause  to  change,  and  was  mean  enough,  he  could  change 
right  in  the  presence  of  the  officers  there ;  he  didn't  change  in  our  presence,  though, 
where  we  could  see. 

Q,  You  say,  then,  if  he  was  mean  enough  to  do  it,  he  could  change  after  he  got  in 
the  room  ? — A.  After  he  entered  the  door. 

Q.  And  when  they  got  in  that  room  most  of  them  staid  some  five  minutes,  did 
they  not  ? — A.  Yes,  sir. 

Q.  It  is  true,  is  it  not,  that  some  colored  men  voted  the  Democratic  ticket,  and  one 
or  two  admit  it,  and  the  other  men  who  voted  the  Democratic  ticket  are  apt  to  deny 
it  ? — A.  Well,  I  don't  know,  sir,  of  any  one  that  we  gave  tickets  voted  the  Democratic 
ticket,  and  if  they  did  it  is  not  known  to  the  general  run  of  colored  people.  Any  one 
that  voted  the  Democratic  ticket  the  officers  know  could  not  have  voted  after  they 
entered  the  room  without  changing  inside  the  door. 

Q.  Is  it  not  true  that  there  is  a  good  deal  of  feeling  expressed  by  the  colored  men 
down  there  about  men  who  vote  the  Democratic  ticket  and  then  conceal  it  ? — A.  Yes, 
sir. 

Q.  Is  it  not  true  that  women  have  actually  threatened  to  leave  their  husbands  be- 
cause they  were  suspected  of  voting  the  Democratic  ticket  ? — A.  Yes,  sir ;  I  have 
heard  of  the  like. 

Q.  Is  it  not  true  that  in  those  clubs  there  has  been  a  good  deal  of  talk,  and  among 
the  members  of  those  clubs  a  good  deal  of  talk  about  men  of  the  colored  race  who 
were  understood  to  have  voted  the  Democratic  ticket  and  concealed  it  ? — A.  Yes,  sir. 

Q.  Don't  you  think  some  of  them  are  sorry  for  it? — A.  I  don't  know.  A  man  that 
is  mean  enough  to  do  anything  of  that  kind  I  can't  tell  hardly  when  he  is  sorry. 

W.  Wallace,  a  witness  for  contestant,  222,  223 : 

Q.  Were  these  men  who  said  they  would  hold  their  tickets  a  foot  and  a  half  from 
their  body  who  had  been  suspected  of  voting  the  Democratic  ticket  on  the  sly  ? — A. 
They  were  men  who  voted  the  Democratic  ticket  in  August. 

Q.  And  they  had  been  censured  by  the  other  colored  men  for  deserting  their  race  in 
August,  had  not  they? — A.  What  do  you  mean  by  censured?  Yes,  sir;  they  bad 
been  laughed  at.  I  don't  know  that  they  had  rated  them  in  any  way,  though  they 
had  been  laughed  at. 

Q.  Then,  to  fully  understand  the  matter,  the  men  who  held  out  the  tickets  a  foot 


LOWE    VS.    WHEELER.  133 

and  a  half  from  the  body  were  men  who  voted  the  Democratic  ticket  in  August,  and 
they  did  it — that  is,  they  held  out  their  tickets  in  November  to  show  you  tliat  they 
voted  the  Republican  ticket  in  November? — A.  They  done  that  to  prove  that  they 
were  true  Republicans;  that  is,  all  men  did. 

Q.  Did  every  man  take  his'ticket  in  his  left  hand  or  right  hand? — ^A.  In  his  right 
hand. 

Q.  Did  you  examine  his  hand  and  sleeve,  to  see  that  there  was  no  other  ticket 
there  ? — A.  Well,  they  would  open  their  hand.  I  did  not  examine  their  sleeve,  but 
their  coat  was  so  short  I  could  see  their  wrist  and  see  there  was  nothing  else  in  their 
hand. 

Q.  You  thought  it  important  to  examine  their  wrist  and  see  that  there  was  noth- 
ing up  their  sleeves  f — A.  Yes,  sir ;  I  did. 

Q.  And  you  examined  each  one  in  this  way? — A.  Yes,  sir;  I  examined  every  one 
that  voted  the  ticket. 

Q.  You  examined  each  one  of  the  156  colored  men  ? — A.  Yes,  sir;  I  did. 

Q.  You  examined  their  hands  and  sleeves  to  see  that  there  could  be  no  foul  play  ? — 
A.  Well,  I  did  not  feel  of  their  arms  and  sleeves,  but  I  examined  their  wrists  close 
before  I  gave  them  their  ticket. 

Q.  You  did  all  this  because  you  had  very  little  confidence  in  these  men  ? — ^A.  I  had 
contidence  in  them,  but  I  did  it  to  be  satisfied  in  my  own  mind  that  they  did  vote  the 
Republican  ticket. 

Q.  If  the  Democratic  ticket  they  had  had  been  rolled  up  very  close  they  could  have 
secreted  it  so  you  could  nos  see  it,  could  not  he  ? — A.  Every  man  held  his  hand  open 
and  showed  me  that  he  had  no  ticket  before  he  asked  for  mine. 

A.  McCalley,  606 : 

Question.  State  your  name,  occupation,  and  if  you  are  a  colored  man. — Answer. 
Alfred  McCalley ;  forty- seven  years  of  age ;  occupation,  minister  of  the  gospel  and  a 
fanner;  colored  man. 

Q.  State  if  you  was  a  delegate  to  the  Democratic  convention  held  in  Decatur  last 
August  which  nominated  a  candidate  to  represent  this  district  in  Congress  ? — A.  I 
was. 

Q.  What  other  colored  men,  if  any,  from  this  county,  were  delegates  to  that  con- 
ventiou  ? — A.  W.  H.  Coun«ill  and  Anderson  Critz. 

Q.  Were  there  many  colored  men  who  were  earnestly  advocating  the  Democratic 
cause  in  the  November  election  ? — A.  There  were. 

Q.  About  how  many  voted  the  Democratic  ticket  at  Lanier's  store  in  the  Novem- 
ber election  ? — A.  I  can't  state  the  exact  number,  but  think  there  were  a  good  many. 

Q.  Do  you  know  of  any  acts  of  terrorism  to  prevent  colored  men  from  voting  the 
Democratic  ticket  in  the  last  November  election  or  precetling  thereto  ? — If  so,  state 
what  they  are. — A.  I  do.  I  know  that  colored  men  are  generally  ostracized  if  they 
vote  the  Democratic  ticket.  Essex  Lewis  was  turned  out  of  the  Cumberland  church 
because  he  voted  the  Democratic  ticket,  and  I  have  been  ostracized  on  that  account. 
The  elder  of  the  church  told  me  that  neither  Essex  Lewis  nor  I  should  ever  be  received 
at  his  house  again  since  we  were  going  to  vote  the  Democratic  ticket.  The  pastor  of 
the  church  invited  me  to  assist  him  in  administering  sacrament  at  Poplar  Hill.  I  went 
to  do  so.  After  I  had  read  a  passage  of  Scripture  and  prayed  and  got  up  to  announce 
my  text,  a  confusion  ensued  andmany  of  the  congregation  departed,  saying  that  they 
would  not  stay  to  hear  a  "Democratic  nigger"  preach.     This  was  since  the  election. 

Q.  Please  state  if  you  went  to  Hartsell's  to  make  a  speech  in  September  last  in'the 
interest  of  the  Democratic  party  ? — A.  I  did. 

Q.  Please  state  what  occurred  ? — A.  I  was  asked  what  party  I  was  advocating.  I 
said  the  Democratic  party.     Then  they  would  not  permit  me  to  speak. 

Q.  Who  was  it  that  would  not  allow  you  to  speak? — A.  The  colored  people. 

Q.  Did  you  know  who  they  were  ? — A.  I  did  not.  I  only  know  that  there  was  a 
large  portion  of  them  who  would  not  permit  me  to  speak. 

Q.  Did  they  use  any  threats  against  you  if  you  tried  to  speak  ? — A.  They  did.  They 
said  if  I  got  up  to  speak  that  they  would  mob  me. 

Q.  What  did  you  do  ? — A.  I  took  the  4  o'clock  train  and  returned  to  Huntsville. 

Q.  Why  do  you  think  that  a  great  many  colored  men  voted  the  Democratic  ticket 
at  Lanier's  store  in  the  November  election  ? — A.  There  are  a  great  many  colored  men 
who  favor  the  Democratic  party,  and  will  always  vote  that  ticket  but  for  the  ostra- 
cism and  terrorism  practiced  by  the  Republicans  or  Greenbackers. 

Another  explanation  of  the  result  is  that  Lanier's  precinct  was  carved 
out  of  Triana  and  Whitesburg  precincts  after  the  August  election  and 
before  the  Xovember  election  of  1880,  and  the  aggregate  Democratic 
majority  at  the  two  precincts  in  August  was  169,  whereas  at  the  Novem- 
ber election  the  aggregate  result  was  a  Democratic  minority  of  222. 


134 


DIGEST    OE    ELECTION    CASES. 


This  shows  not  a  Democratic  gain,  but  a  Democratic  relative  loss  of  391 
votes  at  the  three  precincts  in  November. 
The  vote  in  August  stood  as  follows  : 


Triana 

Whitesburg. 


Democi-atic.       Opposition. 
.       350  227 

.       267  221 


617 


Democratic  majority,  169. 

But  the  vote  in  November  was  : 


Democratic. 

Triana 84 

Whitesburg 175 

Xianier's 133 


392 


448 


Opposition. 
336 
223 
55 

614 


Democratic  minority,  222. 


This  is  shown  on  pages  533,  534,  and  535  of  the  record. 

It  appears,  therefore,  that  the  aggregate  opposition  vote  was  111 
greater  at  the  Triana  and  Whitesburg  precincts  in  November  than  in 
August,  while  the  aggregate  Democratic  vote  in  November,  in  all  three 
precincts,  was  225  less  than  at  the  two  original  precincts  in  August. 
And  almost  half  of  the  aggregate  Democratic  votes  cast  in  November 
in  the  three  precincts  were  cast  at  the  new  precinct  of  Lanier. 

A  third  explanation  is,  that  three  colored  men,  including  Rev.  Mr. 
McCally,  were  membersof  the  convention  which  nominated  Mr.  Wheeler, 
and  were  influential  workers  for  him. 

Still  another  explanation  is,  that  William  Wallace,  alias  Wallace  To- 
ney,  distributed  Wheeler  tickets.  Wallace  denies  this.  But  Jordan 
swears  to  it  on  page  566.  Wallace  is  impeached  on  pages  549,  556  ;  and 
not  one  of  the  nunrerous  witnesses,  afterwards  examined  by  the  con- 
testant, is  called  upon  to  sustain  him. 

IV. 

Meridianviille,  No.  2. 

The  following  is  the  conclusion  of  the  committee  respecting  the  elec- 
tion at  this  precinct : 

The  returns  being  successfully  impeached,  contestant  very  properly  relies  upon  the 
direct  testimony  of  the  voters  themselves,  which  clearly  entitles  him  to  55  votes  at 
this  box. 


But  the  contestant  did  not  specify,  as  one  of  the  grounds  of  his  con- 
test, that  he  received  55  votes,  or  any  other  number  of  votes,  at  this  pre- 
cinct; nor  did  he  advise  the  contestee  in  his  notice  of  contest  that  he 
would  attempt  to  prove  such  votes  by  witnesses.  Nor  did  he  demand 
the  rejection  of  the  precinct  return.    All  he  said  was  this  : 

I  am  informed  and  believe,  and  so  charge  the  fact  to  be,  that  there  was  fraud  and 
ballot-box  stuffing  or  a  false  count  at  the  precinct  of  Meridianville  (box  No.  2),  in  Mad- 
ison County. 

The  grounds  of  this  alternative  charge,  urged  in  argument,  were  (1) 
that  the  contestant  received  18  votes  less  than  the  Garfield  electors ;  (2) 
that  all  the  inspectors  were  Democrats  ;  (3)  that  55  ballots  were  cast  for 
the  contestant,  but  only  47  counted  for  him  ;  and  (4)  that  one  of  the  in- 


LOWE    VS.    WHEELER.  135 

specters  so  inclined  his  person  that  the  supervisor  could  not  see  the  bal- 
lots when  they  were  counted  out  at  the  close  of  the  polls. 

The  circumstance  that  the  contestant  received  18  votes  less  than  the 
Garfield  electors  would  not  seem  to  be  a  very  serious  element  in  the 
charge  against  the  integrity  of  the  returns.  It  is  not  surprising  that  he 
did  not  receive  all  the  Eepublican  votes  at  this  precinct.  In  truth,  it  is 
rather  amazing  that  he  received  any  at  all. 

He  had  been  a  life-long  Democrat,  and  while  connected  with  the  Dem- 
ocratic pnrty  had  vilified  the  Kepublicans,  and  particularly  the  colored 
voters,  with  extraordinary  virulence. 

To  the  complaint  that  all  the  inspectors  were  Democrats,  the  answer 
is  obvious.  In  the  first  place,  the  law  on  this  subject  is  not  mandatory. 
In  the  next  place,  a  Eepublican  was  appointed,  but  did  not  appear ; 
and  in  his  absence  the  inspectors  made  an  appointment  to  fill  the  va- 
cancy. There  was  no  law  requiring  them  to  select  aEepublican  in  that 
case.  They  did,  however,  attempt  to  do  so.  But  book-learning  seemed 
to  be  at  a  discount  among  the  contestant's  supporters,  and  the  attempt 
was  a  failure. 

The  charge  that  55  ballots  were  cast  for  the  contestant  and  only  47 
counted  for  him,  rests  upon  65  so-called  depositions  offered  by  the  con- 
testant. 

These  depositions  are  inadmissible  for  the  following  reasons : 

(1)  Xone  of  the  depositions  are  certified  as  required  by  law. 

(2)  They  constitute  testimony  in  chief,  and  were  taken,  in  the  face  of 
the  contestee's  objections,  during  the  last  ten  days  of  the  time  limited 
by  law. 

(3)  The  notary  refused  to  permit  the  contest«e  to  cross-examine  the 
witnesses. 

To  maintain  the  assertion  that  55  votes  were  cast  for  the  contestant, 
instead  of  47,  he  depends  largely  on  the  testimony  of  a  colored  man 
named  Wade  Blankenship.  The  following  extract  from  his  deposition, 
printed  on  pages  234,  235,  and  241,  will  show  the  character  of  the  wit- 
ness on  whom  the  contestant  relies  for  the  impeachment  and  overthrow 
of  the  returns  of  these  polls  : 

Q.  Where  did  you  hold  that  club  meeting  before  the  election  ? — A.  On  Jack  Penny's 
place. 

Q.  How  many  were  present  f — A.  I  don't  remember  before  the  election  ;  I  don't  re- 
member how  many  was  present,  sir. 

Q.  About  how  many  t — A.  Well,  at  that  meeting  there  was  probably  sixty-five  or 
seventy  men  there. 

Q.  You  know  that  to  be  true,  do  you  ? — A.  Well,  Ldon't  know  to  be  positive,  but 
there  was  somewhere  in  the  neighborhood  of  that. 

Q.  Can  you  swear  positively  that  there  were  sixty  men  present  f — A.  I  wouldn't 
swear  at  all  about  it ;  I  was  not  acting  as  secretary  of  the  meeting ;  I  was  there  only 
as  a  speaker  that  night,  and  I  paid  no  particular  attention  as  to  how  many  men  were 
present. 

Q.  Did  you  know  the  men  that  were  present  personally  f — A.  Yes,  sir;  I  knew  every 
man  in  the  house ;  I  reckon  there  is  none  out  there  a  stranger  to  me. 

Q.  Can  you  swear  there  were  fifty  men  ? — A.  Yes,  sir ;  I  would  do  that,  but  I  wouldn't 
want  to  swear  that  there  were  any  designative  number,  simply  from  the  fact  that  I 
don't  know  how  many  were  there. 

Q.  If  you  don't  know  how  many  were  there  why  did  yon  swear  there  were  sixty-fiye 
or  seventy  there  ? — A.  I  say  I  did  not  swear  that. 

Q.  Then  you  don't  understand  that  what  you  say  here  is  swearing,  do  you? — A.  I 
understand  that,  of  course,  but  I  didn't  speak  definitely  as  to  how  many  were  there. 

Q.  Can  you  swear  that  there  were  forty  men  there  ? — A.  I  could  do  it,  but  I  don't 
want  to  swear  as  to  any  designated  number,  general,  as  I  first  stated  to  you. 

Q.  If  you  are  certain  there- was  forty  there,  why  do  you  object  to  swearing  there 
was  forty  there* — A.  Well  from  the  simple  fact  that  I  didn't  count  them;  I  just 
judged  from  the  crowd  sitting  around  that  there  was  sixty-five  or  seventy  men  that 
were  present. 


136  DIGEST    OF    ELECTION    CASES. 

Q.  What  kind  of  a  house  was  it  f — A.  It  was  a  box  (little),  probably  sixteen  by 
eighteen. 

Q.  And  they  were  all  sitting  down,  were  they  * — A.  No,  sir ;  they  couldn't  get  seats 
to  sit. 

Q.  Yon  think  then  it  is  probable  there  were  sixty-five  or  seventy  men  in  the'room  f 
— A.  Yes,  sir. 

Q.  Who  occupies  that  house  T — ^A.  Well,  it  has  been  occupied  as  a  school-house  for 
the  last  year. 

Q.  Were  there  any  tables  in  it? — A.  A  small  table  there  they  used  for  the  secretary 
of  the  club. 

Q.  You  are  a  good  judge  of  numbers,  are  you  not,  of  men  T — A.  I  don't  know  I  have. 
I  guess  pretty  well  different  times  at  a  body  of  men. 

Q.  Can  you  not  swear  there  were  thirty  men  there  ? — A.  I  could  do  it,  but  I  wouldn't 
do  it  from  the  simple  fact  that  1  didn't  count  the  men,  and  I  couldn't  say  positively — 
well,  I  know  there  was  that  many. 

Q.  If  you  know  there  was  fortv  men  there  why  are  you  unwilling  to  swear  there 
were  thirty  men  there? — A.  Well,  I  gave  you  my  reasons  a  few  minntes  ago. 

Q.  Are  you  willing  to  swear  there  was  twenty  men  there? — A.  Yes,  sir;  I  would  be 
willing  to  do  it,  though  in  the  mean  time  I  don't  want  to  do  it. 

Q.  Would  you  swear  there  was  tifteen  men  there? — A.  Yes,  sir;  I  would;  but  I 
don't  want  to  do  it  under  the  circumstances. 

Q.  Would  you  swear  there  was  ten  men  there  ? — A.  I  would,  but  then  1  don't  want 
to  do  it. 

Q.  How  many  men  did  you  see  put  in  Lowe  votes  at  that  box  ? — A.  I  don't  know. 

Q.  Did  you  see  any  men  put  in  Lowe  votes  at  that  box  ? — A.  Yes,  sir. 

Q.  How  many  ? — A.  I  don't  know,  I  told  you. 

Q.  Did  you  see  ten  (10)  men  put  in  Lowe  votes  at  that  box? — ^A.  I  don't  know. 

Q.  Did  you  see  five  men  put  in  Lowe  votes  at  that  box  ? — A.  I  don't  know,  sir,  the 
number.     I  know  I  saw  men  vote  there,  though. 

Q.  Could  you  read  the  tickets  in  their  hands  as  they  voted?— A.  No,  sir. 

Q.  Could  you  read  the  ticket  in  any  man's  hand  that  he  voted  besides  your  own  ? — 
A.  No,  sir ;  I  don't  think  I  saw  a  man  vote  an  open  ticket  there. 

The  contestee  has  taken  the  trouble  to  impeach  Blankenship  (p.  517) 
But  this  is  wholly  unnecessary.  He  possesses  an  imagination  which  a 
Falstaff  might  envy,  fle  sees  57  colored  Republicans  marching  to  the 
polls  where  only  30  are  visible  to  other  men.  He  sees  65  or  70  men 
assembled  in  a  room  which  he  says  is  16  by  18,  which  another  says  is  14 
feet  square. 

The  testimony  ofWalter  Blankenship,  on  page  290,  shows  what  kind 
of  evidence  the  rest  of  these  witnesses  would  have  furnished,  if  the  con- 
testee had  been  permitted  to  cross-examine  them.    He  says : 

Int.  25.  For  what  oJBflces  were  the  persons  to  be  elected  who  were  on  the  ticket  be- 
sides the  county  officers? — A.  For  our  President  and  for  our  Senator. 

Int.  26.  Who  was  to  be  elected  President  and  who  was  to  be  elected  Senator  ? — A, 
Mr.  Hancock  and  Mr.  Garfield  was  running  for  President's  seat,  and  Mr.  Wheeler  and 
Lowe  for  Senator. 

Int.  27.  What  other  ofiScers  were  voted  for  besides  Senator  and  President? — A.  I 
was  not  particularly  caring  about  the  others,  which  one  got  it. 

Int.  28.  You  are  perfectly  certain,  are  you  not,  that  Mr.  Garfield's  name  for  Presi- 
dent and  Mr.  Lowe's  name  for  Senator  was  on  your  ticket  ? — A.  I  am  certain  it  was, 
because  I  got  it  from  a  straight  man. 

Int.  29.  Is  that  the  reason  you  know  the  above  was  on  the  ticket  ? — A.  Of  course  ; 
I  go  by  that ;  yes,  sir. 

KINLOCK  BOX. 

Page  1156.  We  find  the  following  paper  upon  which  the  board  of 
Lawrence  County  counted  16  votes  for  Wm.  M.  Lowe;  Alex.  Heflin  was 
the  returning  officer  of  this  county.  There  is  not  a  particle  of  proof 
that  any  election  was  held  at  that  place  at  all,  and  this  paper  is  the 
only  thing  that  indicates  an  election  was  held  at 


LOWE    VS.    WHEELER.  137 

KINLOCK  BOX. 

We,  the  undersigned,  judges  and  clerks,  do  certify  that  this  is  a  true  list  of  the 
voters  polled  at  Kinlock,  Lawrence  County,  Alabama  : 
For  President,  State  at  Large  : 

James  M.  Pickens,  v,  v,  iiii. 
For  Vice : 

Lalwer  S.  Beers,  v,  v,  iiii. 
District  electors : 

Ist  District,  C.  C.  McCall,  v,  v,  iii. 

2  Dc,  J.  B.  Townsend,  v,  v,  iii. 

3Dc.,A.B.  Griffin,  v,v,  iii. 

4  Dc,  Hilliard  M.  Judge,  v,  v,  iii. 

5  Dc,  Theodore  Nunn,  V,  V,  iii. 

6  Dc,  J.  B.  Shields,  v,  v,  iii. 

7  Dc,  H.  R.  McCoy,  v,  v,  iii. 
For  Congress,  eighth  dc. : 

Wm.  M.  Lowe,  v,v,  iii. 
For  President  and  Vice : 

Geo.  Turner,  ii. 

Willard  Wonern,  ii. 

Luther  R.  Smith,  ii. 

Charles  W.  RuUy,  ii. 

John  J.  Martin,  ii. 

Benjamin  S.  Turner,  ii. 

Daniel  B.  Booth,  ii. 

Wintield  S.  Bird,  ii. 

Nicholas  S.  McOflfee,  ii. 

James  S.  Clarke,  ii. 
For  Representative  in  Congress,  from  the  8 : 

William  M.  Lowe,  ii. 

The  above  is  the  only  return  received  from  the  Kinlock  box. 

The  deposition  of  J.  H.  McDonald,  page  11*38^,  shows  that  upon  this, 
return  the  county  officials  estimated  16  votes  for  William  M.  Lowe,  and 
none  for  Joseph  Wheeler. 

It  will  require  no  argument  or  authority  to  show  that  these  returns^ 
cannot  be  received,  and  that  16  votes  should  be  deducted  from  the  votes- 
returned  for  William  M.  Lowe  from  Lawrence  County. 

THE  UNREGISTERED   VOTE. 

We  now  proceed  to  the  consideration  of  that  branch  of  this  case  which 
has  relation  to  ballots  that  were  illegal  because  the  voters  were  not  regis- 
tered. The  coutestee  gave  notice  to  the  contestant  by  his  answer  that 
he  would  insist  ujion  the  rejection  of  such  ballots.  By  the  constitution 
of  Alabama  the  qualifications  of  voters  are  distinctly  prescribed  as  fol- 
lows :  A  residence  of  one  year  in  the  State,  of  three  months  in  th& 
county,  and  of  thirty  days  in  the  precinct.  See  article  8,  page  142  of 
the  Code  of  Alabama. 

Section  5  of  the  same  article  is  in  the  following  language : 

The  general  assembly  may,  when  necessary,  provide  hy  law  for  the  registration  oT 
electors  throughout  the  State,  or  in  any  incorporated  city  or  town  thereof,  and  when 
it  is  80  provided  no  person  shall  vote  at  any  election  unless  he  shall  have  registered  as 
required  by  law. 

The  legislature  of  Alabama  passed  a  registration  law  in  which  pro- 
vision was  made  for  a  complete  registration  of  the  voters.  The  sub- 
stance of  this  law  is  that  the  secretary  of  state  appoints  a  registrar  in 
each  county,  and  the  county  registrar  appoints  an  assistant  for  each 
voting  i)recinct  or  ward  in  the  county.  This  assistant  makes  a  full 
registration  list  of  the  voters  in  his  precinct  or  ward,  returns  it  to  the 
judge  of  probate  of  the  county,  and  the  judge  of  probate  furnishes  to- 


138  DIGEST    OF   ELECTION    CASES. 

the  inspectors  of  the  election  certified  lists  for  each  precinct,  and  these 
certified  lists  constitute  the  registration  lists  evidencing  who  are  entitled 
to  vote.  In  making  up  this  registration  list,  the  elector  is  required  to 
make  oath  that  he  has  the  qualifications  of  a  voter  as  prescribed  by  the 
constitution  of  Alabama  above  stated.  The  assistant  registrars  are  re- 
quired to  be  present  on  the  day  of  election  for  the  purpose  of  register- 
ing such  persons  as  may  not  have  registered  prior  to  the  election.  The 
list  of  those  registered  on  the  day  of  the  election  is  returned  with  the 
poll-lists,  &c.,  kept  on  the  day  of  the  election,  to  the  county  canvassers, 
and  this  list  kept  on  the  day  of  the  election  is  filed  with  the  judge  of 
probate  and  becomes  a  part  of  the  records  of  his  office,  and  thus  the 
registration  lists  are  kept  complete,  and  constantly  show  who  are  entitled 
to  vote  in  the  various  precincts  and  wards  of  the  county. 

The  contestee,  as  above  stated,  claims  that  a  very  large  number  of 
persons  were  permitted  to  vote  in  this  district  who  bad  not  been  regis- 
tered according  to  the  provisions  of  this  law,  and  the  contestant  en- 
deavors to  escape  from  this  claim  of  the  contestee,  not  by  showing  that 
the  parties  who  voted  were  registered  as  the  law  requires,  but  by  a 
construction  of  the  constitution  which  we  will  here  briefly  state.  The 
contestant  claims  that  the  provision  of  the  constitution  above  quoted 
only  means  that  a  party  shall  not  be  permitted  to  vote  when  the  act  of 
the  legislature  in  distinct  terms  provides  that  he  shall  not  be  permitted 
to  vote  unless  he  has  been  registered.  Or,  in  other  words,  he  claims 
that  notwithstanding  the  fact  that  the  constitution  provides  as  already 
quoted,  and  notwithstanding  the  fact  that  a  registration  law  has  been 
enacted,  still  the  party  is  entitled  to  vote  unless  the  statute  of  Alabama 
expressly  provides  that  he  ^hall  not  be  permitted  to  vote  excepting  when 
he  is  registered. 

Now  we  respectfully  submit  that  this  is  a  perversion  of  the  plain  lan- 
guage of  the  constitutional  provision.  It  will  be  observed  that  the 
language  of  the  constitution  is  that  "the  general  assembly  may,  when 
necessary,  provide  by  law  for  registration,  *  •  *  and  when  it  is 
80  provided  no  person  shall  vote  unless  he  shall  have  registered  as  re- 
quired by  law." 

Now,  what  do  these  words,  "  so  provided,"  refer  to  ?  Plainly  to  regis- 
tration. That  is  to  say,  the  general  assembly  was  authorized  to  provide 
by  law  for  registration;  to  determine  the  mode  and  requisites  of  regis- 
tration generally  and  particularly.  The  registration  had  reference  to 
persons  who  were  entitled  under  the  constitution  to  vote.  It  has  noth- 
ing whatever  to  do  with  the  qualifications  of  the  voter,  because  those 
qualifications  are  fixed  by  the  constitution  itself,  and  could  not  be  inter- 
fered with  by  any  act  of  the  legislature.  And  therefore  the  concluding 
words  of  this  section  are  unmistakable  in  their  meaning,  "no  person 
shall  A^ote  at  any  election  unless  he  shall  have  registered  as  required  bj' 
law  " ;  and  that  meaning  is  that  the  constitution  having  fixed  the  quali- 
fications of  the  voter,  this  registration  law  was  intended  to  furnish  the 
evidence  of  the  right  of  the  party  to  vote,  to  wit,  his  being  registered 
as  a  voter  according  to  the  forms  and  requirements  of  this  act  of  the 
legislature.  This  act  of  the  legislature  was  provided  for  by  the  con- 
stitution, not  to  determine  the  qualifications  of  the  voter,  but  to  furnish 
the  qualified  voters  with  the  evidence  that  they  were  qualified  and  enti- 
tled to  cast  their  ballots ;  and  the  constitution  simply  provides,  and  no 
other  rational  meaning  can  be  attributed  to  it,  that  registration,  and  that 
alone,  shall  be  evidence  of  the  fact  that  the  i)arty  is  a  qualified  voter, 
and  therefore  any  person  who  is  not  registered  is  clearly  an  illegal  voter 
under  the  constitution  and  laws  of  the  State  of  Alabama.    Eegistration 


LOWE    VS.    WHEELER. 


139 


is  the  act  of  the  voter.  If  he  fails  to  register  it  is  his  own  fault,  and  he 
cannot  complain,  nor  can  any  one  else,  if  his  right  to  vote  is  lost  by  rea- 
son of  non-registration. 

Alter  a  careful  examination  of  the  testimony  in  this  case,  we  believe 
that  it  conclusively  shows  that  not  less  than  2,400  persons  voted  in  this 
district  who  were  not  registered,  and  that  not  less  than  1,000  of  them 
voted  for  the  contestant. 

We  cannot  here  set  out  all  the  testimony  on  this  subject,  but  submit 
a  table,  giving  the  precincts,the  number  of  non-registered  voters,  names 
of  witnesses,  and  pages  of  the  record,  for  convenience  of  reference : 


Table  No.  2. —  JJnregiatered  and  illegal  voters  who  are  proven  to  have  voted  for  William  M. 
Lowe  for  Congresx,  November  2,  1880.  These  illegal  voters  comprise  apart  of  the  12,665 
votes  which  were  returned  for  Wm.  L.  Lowe. 


County. 


Precinct. 


£J5 
■g    '-' 


Names  of  witnesses  who  prove  the 
illegality  of  these  voters,  or  that 
they  voted  for  Wm.  M.  Lowe. 


-Jackson 


Madison 


Lawrence.. 


Limestone . . 


Colbert , 


Lauderdale. . . 


Berry's  Store 713-716 


Nashville 

Carpenter's    

Hunt's  Store 

Hawk's  Springs 

Bishop's 

Scottsboro' 


Bellefonte 

Davis's  Springs 

Meridianville  No.  2 

Meridianville  No.  1 

Whitesburg 

Madison 

Madison  X  Badds . . 

Maysville 

Cluttsville 

Courtland  No.  2 


Brickville . 
Red  Bank. 


Moulton < 

Hampton's 

Mooresvllle 

Slough  Beat 

Athens 


Shoal  Ford 

South  Florence. 


Florence  , 


Oakland 

Center  Star.. 
Cave  Springs. 


626-642 

645-655 
610-625 
584-592 
592-610 
571-584 

1142-1154 

1186 
1184-1186 
1173-1177 

1196 
1179-1182 

826-831 

823-826 


831-835 


835-838 
420-427 


921-924 
939-944 
926-929 
945-946 
938 
954-955 


690 
695 
692 
697 


691 
693 
667 


659 
658 
662 
656 

1139 

1182 
1183 

I   1177 

1182 


842 


856 
441 


916 
910 


1,027 


Robert  F.  Riddle  and  Robert  F.  Proctor 

pp,  790,  792. 
Frederick  J.  Robinson,  p.  784. 
Daniel  D.  Harris,  p.  783. 
J.  F.  Skelton,  p.  788. 
Samuel  Rorex,  p.  778. 
D.  V.  Enochs,  p.  781. 
Robert  S.  Skelton  &  Wm.  B.  Bridges, 
_pp.  773,  774. 
W^illiam  P.  Keith,  p.  795. 
Alexander  Moody,  p.  794. 
Each  proven  by  the  voter  himself,  268 . 

279. 

A.  J.  Bentley,  p.  513,  and  J.  M.  Robin- 
son, p.  544. 

G.  D.  Miller,  pp.  509,  SIOJ. 

Thomas  B.  Hopkins,  pp.  511i,  512}. 

N.  P.  Tavlor,  p,  570. 

Thomas  J.  Taylor,  p.  514. 

Wm.  M.  Douglass  and  G.  W.  Smith, 
pp.  549,  542. 

Quintus  Jones  and  John  W.  Battle, 
pp.  1081.  1127. 

Oliver  H.  Reid,  p.  1131. 

J.  Milton  Gray,  p.  1132. 

(  W.  J.  Seamans  &  C.  A.  Crow,  p.  1161. 

)  Jourdan  White  &  D.  C.  White,  p.  1158. 

W.  D.  Burnett,  p.  1159;  W.  T.  Mo- 
Nutt  and  W.  D.  Johnson,  p.  1166. 

John  N.  Martin,  p.  815 ;  Charles  Hay- 
ward  Jones,  p.  848. 

Robert  Donnell,  p.  819;  Florentine 
Stewart,  p.  829 ;  Neil  S.  Marks,  p. 
817  ;  Nathan  B.  Crenshaw,  p.  849. 

Nat.  B.  Crenshaw,  p.  849;  Peter  J. 
Crenshaw,  p.  858. 

Franklin  J.  Pepper,  p.  855. 

James  O.  Murphy,  John  S.  Jenkins, 
Sam.  Hughley,  James  P.  Murdock, 
Thomas  Clem,  W.  P.  Stradford, 
John  W.  Brabson,  from  pp.  1049  to 
1053. 

C  Gilbert  Jackson,  Wm.  J.  Kernachan, 

\     pp.  967,  969. 

H.  C.  Hyde,  p.  900. 

B.  Joiner,  p.  962. 

Carver  C .  Hipp  and  E.  G.  Hendrix,  pp. 
964,  986 


140  DIGEST    OF   ELECTION    CASES. 

It  will  be  seen  by  reference  to  the  testimony  that  in  a  very  large  pro- 
portion of  the  cases  where  persons  voted  who  were  not  registered  the 
testimony  is  direct  and  positive  that  these  non-registered  persons  voted 
for  the  contestant ;  but  if  it  be  conceded  that  there  is  doubt  as  to  who 
they  voted  for,  then  the  rule  of  law  as  to  dealing  with  such  cases  is  as 
follows  (see  McCrary  on  Elections,  page  298,  section  223,  first  edition) : 

In  purging  the  polls  of  illegal  votes,  the  general  rule  is  that,  unless  it  be  shown  for 
which  candidate  they  were  cast,  they  are  to  be  deducted  from  the  whole  vote  of  the 
election  division,  and  not  from  the  candidate  having  the  largest  number.  (Shepherd 
r.  Gibbons,  2  Brewst.,  128;  McDaniel's  case,  3  Penn.,  L.  F.,  310;  Cushing's  Election 
Cases,  583,)  Of  course,  in  the  application  of  this  rule  such  illegal  votes  would  be 
deducted  proportionately  from  both  candidates,  according  to  the  entire  vote  returned 
for  each.  Thus,  we  will  suppose  that  John  Doe  and  Richard  Roe  are  competing  can- 
didates for  an  office,  and  that  the  official  canvass  shows  : 

Votes. 

For  John  Doe : 625 

For  Richard  Roe 575 

Total  vote 1,200 

Majority  for  Doe ^         50 

But  there  is  proof  that  120  illegal  votes  were  cast,  and  no  proof  as  to  the  person  for 
"whom  they  were  cast.  The  illegal  vote  is  10  per  cent,  of  the  returned  vote,  and  hence 
each  candidate  loses  10  per  cent,  of  the  vote  certified  to  him.  By  this  rule  John  Doe 
will  lose  62^  votes,  and  Richard  Roe  57i  votes,  and  the  result,  as  thus  reached,  is  as 
follows : 

Votes. 

Doe's  certified  votes 625 

Deduct  illegal  votes 62^ 

Total  vote 562^ 

Roe's  certified  vote 575 

Deduct  illegal  votes 57^ 

Total  vote 517i 

Majority  for  Doe 45 

Applying  this  principle,  we  here  submit  a  table  showing  the  number 
of  votes  cast  for  contestant  and  contestee  at  various  precincts,  the  num- 
ber of  non-registered  voters,  and  the  pro  rata  of  deductions  from  each 
party  on  account  of  the  non-registered  voters,  and  the  pages  of  the 
record  where  the  registration  and  the  poll-lists  will  be  found,  &c. : 


LOWE    VS.    WHEELER. 


141 


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142  DIGEST    O'F    ELECTION    CASES 

Now,  making  a  calculation  upon  the  basis  of  2,400  non -registered 
voters,  instead  of  2,698,  as  shown  by  this  table,  and  making  the  deduc- 
tions pro  rata,  there  would  have  to  be  deducted  from  the  vote  of  the 
contestant  1,642,  and  from  the  vote  of  the  contestee  758,  and  this  of 
itself  is  more  than  sufficient  to  overcome  all  that  is  claimed  by  contest- 
ant. But  we  maintain  the  truth  to  be  that  in  making  this  deduction  on 
account  of  illegal  ballots  by  reason  of  non-registration  there  should  first 
be  deducted  1,000  at  least,  because  the  proof  shows  that  that  number 
voted  for  the  contestant,  and  that  in  making  the  application  of  the  pro- 
rata rule  it  should  be  confined  to  the  remaining  1,400  votes  which  the 
testimony  does  not  show  for  whom  the  votes  were  cast,  and,  making  the 
application  to  this  number,  there  would  be  deducted  from  the  contestant, 
first,  1,000  which  were  proven  to  have  been  cast  for  him,  and,  second, 
905  under  the  pro  rata  rule,  making  a  deduction  of  1,905  votes  from  his 
aggregate  and  495  from  the  aggregate  of  the  contestee,  and  if  we  are 
correct  in  this,  this  alone  is  conclusive  against  the  contestant  in  this 
case. 

Another  rule  might  be  adopted  which  is  more  favorable  to  contestant, 
and  which  we  have  set  out  elaborately  in  our  conclusion.  It  is  urged 
by  Mr.  Ranuey,  of  the  majority,  who  has  submitted  his  "  views,"  that 
the  contestee  cannot  have  advantage  of  this  for  the  reason,  as  he 
claims,  that  the  evidence  is  not  sufficient  to  show  that  these  parties 
weie  not  registered.  To  what  special  lists  he  applies  his  objections 
his  "views"  do  not  inform  us.  He  speaks  of  them  generally  and 
makes  his  objections  equally  generally.  One  of  his  objections  is  that 
*'  we  have  nothing  to  show  what  names  were  once  on  them  and  been 
dropped  off"  or  taken  oft"  by  reason  of  death,  disability,  removals,  or  for 
other  reasons." 

We  fail  to  see  the  pertinency  of  this  objection.  If  a  man  had  once 
been  registered  and  had  been  taken  off'  the  list  by  reason  of  his  death, 
or  by  reason  of  his  removal,  or  by  reason  of  having  been  convicted  of 
some  crime  which  disqualified  him  as  a  voter,  he  certainly  would  not  be 
entitled  to  be  on  the  registration  list.  He  would  not  be  a  voter,  and  in 
making  up  the  list  for  the  use  of  the  inspectors  it  could  hardly  be  con- 
tended that  the  judge  of  probate  would  put  upon  the  list  which  was  to 
be  the  guide  of  the  inspectors  the  names  of  persons  who  had  thus 
ceased  to  be  registered.  Another  objection  he  makes  is,  that  few  of 
the  lists  are  verified  in  the  original  by  the  certificate  of  the  registrar. 
Another  is  that  these  papers  that  have  been  put  in  the  record  are  not 
in  the  form  prescribed,  with  appropriate  headings,  &c.,  and  he  objects  to 
the  poll-lists  because  some  of  them  do  not  appear  to  have  been  certified 
by  the  inspectors,  and  for  that  reason  claims  that  they  have  no  verifica- 
tion or  identification  as  genuine  poll-lists,  and  cannot  be  regarded  as 
proofs;  and  he  says  that  in  three  precincts  of  Limestone  County  no 
poll-list  appeared  to  have  been  returned  at  all,  and  the  judges  gave  no 
certified  copy  of  the  same  ;  but  he  adds  that  "  the  contestee  has  put  in 
evidence  three  papers  sworn  to  by  one  of  the  inspectors  in  each  case  as 
the  poll-list,  and  purporting  to  be  signed  by  the  three  inspectors.  But 
as  they  never  sent  them  to  the  probate  office  as  required  by  law,  and  no 
reason  or  explanation  for  the  omission  given,  we  do  not  regard  them  as 
proof  or  as  worthy  of  credit." 

Now,  the  answer  to  all  this  seems  to  us  to  be  plain.  First,  as  to  those  lists 
which  he  criticises  on  account  of  informality,  which  have  been  certified  by 
the  probate  judge,  the  law  requires,  as  we  hav' e  seen,  first,  that  the  judge  of 
probate  shall  furnish  to  the  precinct  inspectors  the  registration  lists  which 
are  to  be  their  guide  in  conducting  the  election.    Next  it  requires  that 


LOWE    VS.    WHEELER.  '      145 

the  precinct  registrar  shall  be  present  on  thetlay  of  the  election  and  regis- 
ter such  persons  as  have  not  theretofore  been  registered ;  next  it  requires 
this  additional  registration  list  to  be  sent  up  with  the  returns,  in  the 
same  box  in  which  the  returns  are  sent ;  next,  it  requires  that  this  addi- 
tional registration  list  shall  be  filed  with  the  probate  judge,  and  thus  we 
have  in  the  office  of  the  i^robate  judge  the  very  identical  registration  list 
which  was  used  and  made  at  that  election.  The  probate  judge  is  by  law 
the  custodian  of  this  list,  and  whether  that  list  was  formal  or  informal 
in  its  construction,  and  whether  tlie  proper  certificate  was  put  upon  it  or 
not,  can  make  no  possible  difference,  so  far  as  the  point  in  controversy  is 
concerned,  because  it  is  the  list  upon  which  the  election  was  conducted. 
There  was  no  other  list,  and  the  fact  that  the  list  may  have  been  irregu- 
larly made  up  by  the  officers  whose  duty  it  was  to  make  it  could  not  pos- 
sibly render  legal  a  vote  that  was  cast  by  a  party  who  was  not  registered 
even  upon  this  informal  registration  list.  There  is  no  other  way  to- 
prove  what  that  list  was  than  by  the  certificate  of  the  judge  of  probate, 
except  as  we  will  hereinafter  state.  He  was  the  custodian  of  the  list, 
and  his  certified  copy  of  that  which  appeared  in  his  office  as  the  list  is^ 
all  that  the  law  requires. 

To  the  objection  that  he  has  made,  that  some  of  the  pOll-lists,  to  wit^ 
in  three  precincts  in  Limestone  County,  have  not  been  properly  proven, 
because  they  were  presented  in  evidence  by  the  inspector  instead  of 
the  judge  of  probate,  we  think  there  is  a  conclusive  answer  in  this : 
That  the  law  of  Alabama  requires  one  poll  list  to  be  certified  by  the 
precinct  managers  and  sent  up  with  the  returns,  and  another  copy  of 
the  poll-list  to  be  kept  by  the  inspector.  Now,  here  are  two  records 
kept,  one  in  the,  probate  judge's  office,  and  the  other  by  one  of  the  in- 
spectors. And  to  either  of  these  the  contestee  had  the  right  to  go  for 
the  purpose  of  procuring  these  poll-lists,  and  either  one  of  them  is  per- 
fectly competent  as  testimony.  In  respect  of  the  three  precincts  re- 
ferred to,  the  contestee  has  seen  fit  to  put  in  evidence  the  poll-list 
which  the  law  requires  to  be  kept  by  the  inspector,  and  we  entirely 
fail  to  see  why  that  poll-list  is  not  entirely  competent  as  evidence,  just 
as  competent  as  would  be  the  poll-list  that  was  filed  in  the  office  of  the 
judge  of  probate.  But  the  testimony  of  these  inspectors  and  the  integ- 
rity of  these  poll-lists  is  attempted  to  be  called  in  question,  because  it 
is  said  that  from  these  precincts  no  poll-list  found  its  way  into  the  of- 
fice of  the  judge  of  probate.  But  the  fact  that  these  poll-lists  did  not 
find  lodgment  in  the  office  of  the  judge  of  probate,  when  it  is  proven  by 
the  testimony  of  the  inspector  who  produces  the  poll-list  required  by 
law  to  be  kept  by  him  that  that  was  the  poll-list  used  at  that  election, 
then  we  suamit  that  the  fact  that  there  is  no  list  in  the  office  of  the 
judge  of  probate  for  such  precinct  is  not  upon  any  principle  known  to 
the  law  sufficient  to  defeat  the  direct  evidence  above  referred  to.  As 
to  these  registration  lists  therefore  the  case  stands  thus :  The  contestee 
has  furnished  certified  registration  lists  as  they  appear  in  the  office  of 
the  judge  of  probate  and  poll-lists  as  to  the  precincts,  except  three  in 
Limestone  County,  and  as  to  these  three  he  has  taken  the  testimony  of 
the  inspectors  in  whose  custody  the  poll-lists  were,  and,  in  connection 
with  their  testimony,  has  produced  the  lists  used  in  those  precincts. 

The  objection  taken  to  the  poll-lists  furnished  by  the  judge  of  probate 
because  the  certificate  of  the  inspectors  of  the  election  does  not  appear 
thereon  is  untenable,  we  submit,  for  another  reason.  By  an  examina- 
tion of  the  statute  it  will  be  seen  that  the  inspectors  are  required  to 
keep  a  "  poll-list."  Then  they  are  required  to  make  a  certificate  on  that 
"  poll-list,"  and  the  "  poll-list,"  as  we  have  above  stated,  is  to  be  filed  in 


144  DIGEST    OF    ELECTION    CASES. 

the  ofiSce  of  the  judge  of  probate.  ]S^ow,  the  certificate  of  the  precinct 
managers  that  is  to  be  indorsed  on  the  "  poll-list "  is  no  part  of  the  poll- 
list  itself.  It  is  an  identification  or  verification  of  the  poll-list,  and  when 
therefore  the  judge  of  probate  certifies  the  "poll-list,"  it  is  no  part  of 
his  duty  to  certify  the  verification  of  the  poll-list,  and  the  absence  of  this 
verification  is  therefore  no  evidence  that  the  poll- list  was  not  duly  veri- 
fied by  the  certificate  of  the  precinct  managers. 

But  to  all  of  these  objections  that  are  made  to  the  sufficiency  of  this 
testimony  we  have  another  answer  to  make.  The  contestant  was  duly 
notified  of  these  illegal  votes,  and  that  their  rejection  would  be  contended 
for  in  this  contest.  The  contestee,  in  support  of  that,  i)ut  in  evidence 
these  poll-lists  and  registration-lists,  for  the  purpose  of  showing  that 
persons  whose  names  appeared  on  the  poll-lists  did  not  appear  on  the 
registration  lists,  thus  proving  the  illegality  of  these  ballots.  The  con- 
testant had  ample  opportunity  afforded  him  to  show  that  these  i)arties 
were  registered,  if  such  had  been  the  fact.  Specific  information  was 
given  him  by  means  of  these  lists  and  by  directproof  specifying  names 
as  to  the  persons  claimed  to  be  illegal  voters,  and  in  not  a  single  in- 
stance has  he  proven  or  attempted  to  prove  that  these  parties  were 
registered  as  the  law  requires.  If  inferences  are  to  be  indulged  in,  in  a 
case  like  this,  as  they  are  indulged  in  by  the  majority  in  reaching  their 
conclusions,  then  the  inference  from  these  facts  which  we  have  just 
stated  is  irresistible,  that  what  the  contestee  has  asserted  as  to  these 
voters  is  true.  If  it  were  not  so,  if  these  parties  or  any  of  them  were 
registered,  the  contestant  would  undoubtedly  have  availed  himself  of 
the  opportunity  to  make  the  proof  by  producing  the  necessary  evidence, 
which  must  have  been  within  his  easy  grasp,  if  the  fact  had  been  other- 
wise than  as  claimed  by  the  contestee. 

As  above  stated,  conceding  to  the  contestant  all  that  he  claims  in  re- 
gard to  the  matter  of  rejected  ballots,  the  rejection  of  these  non-regis- 
tered voters,  which  we  maintain  is  clearly  commanded  by  the  proofs  in 
this  case,  must  determine  the  case  in  favor  of  the  contestee. 

Mr.  Ranney,  in  his  report  of  the  majority,  asserts  that  the  registration 
lists  which  are  placed  in  evidence  are  not  legal  registration  lists,  that 
is,  they  are  not  such  registration  lists  as  are  required  by  law ;  and  his 
report  gives  as  a  reason  why  this  cannot  be  availed  of  by  Mr.  Wheeler, 
that  "contestee  does  not  set  up  a  want  of  legal  registration  as  vitiating 
the  election  in  any  precinct." 

Upon  this  point  the  majority  are  mistaken.  The  allegations  of  con- 
testee upon  this  point  are  as  follows  : 

Contestee  alleges  that  at  the  following  precincts  of  Lawrence  County, 
viz,  Courtland,  Red-bank,  Avoca,  Wolf  Spring,  Mount  Hope,  Kinlock, 
Landers ville,  Hampton's,  Oakville,  and  Hillsboro',  450  persons  were  al- 
lowed to  vote,  and  did  vote,  for  contestant,  some  of  whom  had  no  right 
to  vote  at  the  precincts  where  they  cast  their  votes,  and  others  who 
voted  at  said  precincts  were  not  legal  voters,  and  had  no  right  to  vote 
at  all. 

And  contestee  further  alleges  that  these  persons  "  did  not  have  a  right 
to  vote,  for  the  reason  that  they  had  never  been  registered  as  required  by 
law.^ 

The  proof  shows  that  there  was  no  legal  registration  at  any  of  these 
precincts,  and  therefore  all  these  should  be  rejected  from  the  count,  be- 
cause where  there  is  no  legal  registration  there  cannot  be  legal  voting. 

This  is  unquestioned  law,  and  was  lately  reaffirmed  by  the  committee 
in  the  case  of  Finley  vs.  Bisbee. 


LOWE    VS.    WHEELER.  145 

In  tlie  Florida  case  the  proof  shows  that  the  registration  lists,  so  far 
«s  they  went,  were  legal. 

In  this  case  the  proof  shows  that  there  was  no  legal  registration  at  all 
in  the  precincts  of  Lawrence  County  which  we  have  mentioned,  and  it 
further  shows  that  no  part  of  the  pretended  registration  of  said  pre- 
cincts is  legal  registration. 

The  allegations  of  contestee  that  registration  lists  are  not  legal  are 
more  direct  and  positive  than  the  allegation  of  contestant  that  ballots 
were  rejected,  and  more  direct  and  positive  than  the  allegation  of  con- 
testant regarding  Lanier  and  Meridianville  precincts. 

COURTLAND  BOX  NO.  2. 

In  addition  to  the  foregoing,  however,  we  think  it  plain  that  under 
the  law  and  the  repeated  decisions  of  the  majority  of  this  committee 
Courtlaud  box  No.  2  must  be  rejected  from  the  count.  This  precinct 
was  returned,  for  contestant  419,  and  for  contestee  111.  The  law  of 
Alabama  requires  that  upon  the  closing  of  the  polls  the  inspectors  shall 
proceed  immediately  to  count  the  ballots.  Now,  in  the  case  of  this  pre- 
cinct, upon  the  closing  of  the  polls  the  inspectors  proceeded  with  the 
count,  and  continued  until  about  two  o'clock  the  following  morning. 
Then  the  suggestion  was  made  by  some  one  that  a  mistake  had  been 
made,  and  thereupon  the  ballots  were  all  replaced  in  the  box,  and  a  Mr. 
Harris,  one  of  the  inspectors,  who  is  described  by  one  witness  as  an 
Independent  voter,  and  whose  politics  are  of  doubtful  complexion,  at 
least,  took  that  box,  with  the  ballots  in  it,  carried  it  away  with  him,  and 
kept  it  until  the  next  morning.  There  is  absolutely  no  testimony  proving 
or  tending  to  prove  that  the  ballots  in  that  box  remained  the  same  dur- 
ing this  interval. 

The  Code  of  Alabama. 

Section  285  says : 

It  is  the  duty  of  all  inspectors  of  elections  in  the  election  precincts,  immediately  on 
the  closing  of  the  polls,  to  count  out  the  votes  so  polled. 

The  positive  proof  shows  that^at  Gourtland  box  No.  2  all  the  inspect- 
ors were  Greenbackers  or  Independents,  and  the  record  shows  that  Mr. 
Lowe,  in  announcing  himself  as  a  candidate,  called  upon  Greenbackers, 
Democrats,  and  Independents,  and  upon  these  alone,  for  support. 

There  is  up  positive  proof  that  Mr.  Harris  was  a  Democrat,  although 
Mr.  Lowe's  lawyers  make  a  great  effort  to  establish  that  fact,  but  it  is 
positively  proved  that  he  had  been  an  independent  voter,  and  had  on 
four  occasions  arraj^ed  himself  against  the  Democratic  party. 

It  shows  that  Joseph  Wheeler  received  as  many  votes  as  Mr.  Lowe, 
but  that  the  inspectors  violated  the  law,  and  that  Wheeler  ballots  were 
abstracted  therefrom  and  Lowe  ballots  substituted  therefor. 

The  uncontroverted  proof  shows  that  there  were  but  little  over  500 
ballots  cast  at  that  box,  and  that  the  inspectors  pretended  to  be  occu- 
pied counting  these  ballots  from  5  o'clock  in  the  evening  until  2  o'clock 
the  next  morning. 

That  even  after  these  nine  hours'  work  the  inspectors  had  not  com- 
pleted the  count  of  the  votes. 

That  they  then  put  the  ballots  in  a  rough  box,  and  that  one  of  the 
inspectors  took  the  ballots  away  from  the  voting  place,  kept  them  all 
H.  Mis.  35 10 


146  DIGEST    OF   ELECTION   CASES. 

night,  and  the  next  day  the  ballots  were  illegally  counted  and  a  return 
made,  falsely  statiDg  that  Wheeler  had  received  111  votes,  and  that 
Lowe  had  received  419  votes. 

And  the  evidence  further  shows  that  in  truth  and  in  fact  Wheeler 
received  at  least  200  votes  at  that  box,  and  the  proof  tends  to  show 
that  he  received  at  least  250  votes. 

We  give  below  some  of  the  evidence  regarding  this  box. 

Mr.  Key D olds,  a  witness  examined  for  William  M.  Lowe,  testified  as 
follows,  page  443 :  "  Was  United  States  supervisor  of  Courtland  box 
No.  2,  at  election  November  2,  1880."  And  on  page  444^  gave  the 
following  evidence : 

Q.  Was  the  vote  counted  out  according  to  law  at  your  box  ? — A.  I  suppose  it  was. 

Q.  Did  you  see  the  vote  counted  out^— A.  I  saw  it;  I  was  in  there  nearly  all  th& 
time,  and  watched  that. 

Q.  State  how  it  was  counted. — ^A.  It  was  counted  out  like  the  votes  are  generally 
counted. 

Q.  Is  it  not  true  that  when  the  votes  were  pretty  nearly  counted  out  that  the  in- 
spectors stopped  counting  the  votes,  poured  all  the  tickets  back,  in  a  rude  box,  and 
then  dispersed,  and  did  not  return  until  the  next  day? — A.  Well,  they  did  not  get 
through  counting  out  until  the  next  day. 

Q.  Cannot  you  answer  the  question,  Mr.  Keynolds  ? — A.  I  know  they  did  not  get 
through  counting,  and  we  had  to  go  back  next  morning  to  finish  counting. 

Q.  Where  were  the  ballots  left  during  the  night  ? — A.  Well,  I  think  Mr.  Harris  taken, 
them  down  to  the  hotel  with  him.     He  was  one  of  the  officers. 

Q.  In  what  did  he  take  them  ? — A.  He  took  them  in  the  box — the  box  that  they  were 
put  in. 

Q.  What  kind  of  a  box  ? — A.  A  ballot-box. 

Q.  Was  not  it  a  common  candle-box  ?^A.  Well,  I  didn't  examine  particularly  about 
that ;  it  was  just  a  ballot-box,  such  as  we  generally  had. 

Q.  Did  it  have  any  lock  to  it  ? — A.  Well,  I  don't  know  ;  I  did  not  examine  it  suffi- 
ciently to  tell  about  that,  whether  it  had  a  lock  on  it  or  not ;  but  it  ought  to  have  had 
if  it  did  not. 

Q.  When  they  returned  the  next  morning  did  they  not  pour  all  the  votes  out  on  the 
table  ? — A.  Well,  they  selected  them  out  and  put  them  at  different  places  in  diftcrent 
piles  by  themselves  so  they  could  get  along  and  count  them  faster. 

Q.  Were  not  all  the  ballots  lying  on  the  table  at  the  same  time  ? — A.  All  of  them  ? 

Q.  Yes,  sir. — A.  I  don't  think  they  were  all  out  at  one  time. 

Q.  Were  not  most  of  the  ballots  lying  on  the  table  at  the  same  time  ? — A.  I  think 
the  majority  of  them  were. 

Q.  How  many  ballots  were  there  ? — A.  In  all  ? 

Q.  Yes,  sir. — ^A.  I  will  have  to  make  a  calculation  here.  How  many  were  therfr 
cast  T 

Q.  Yes,  sir;  at  that  box. — A.  Well,  here  it  is,  you  can  make  the  calculation. 

Q.  Well,  to  give  it  roughly  ? — A.  Mr.  Lowe  got  foHr  hundred  and  forty-one  (441) ; 
twenty-two  (22)  off  left  four  hundred  and  nineteen  (419).  Twenty-two  Greenback 
votes.  Wheeler  one  hundred  and  eleven.  My  recollection  is  that  was  the  majority 
of  the  votes  out  on  the  table. 

Q.  Is  it  not  true  that  when  the  majority  of  the  votes  were  lying  on  the  table,  that 
they  were  sorted  out  in  piles  ? — A.  Well,  they  sorted  them  so  they  could  get  along  in 
counting.  They  sorted  them  out;  that  is,  the  Democratic  votes  were  sorted  out,  and 
the  others  by  themselves. 

Q.  Is  it  not  true  that  they  had  pretty  nearly  counted  out  the  vote  the  night  before, 
before  they  stopped  ? — A.  No,  sir  ;  they  lacked  right  smart  of  it. 

Q.  How  many  hundred  had  they  counted  out,  do  you  think? — A.  Well,  I  don't 
know ;  did  not  take  any  notice  of  tliat. 

Q.  Did  they  commence  in  the  morning  where  they  left  off,  or  did  they  commence  at 
the  beginning? — A.  They  counted  the  whole  thing  over,  my  recollection  is  about  it. 

Q.  Were  not  people  who  were  not  election  officers  permitted  to  come  into  the  room 
in  the  morning  ? — A.  Well,  I  was  not  there  at  the  time,  but  I  was  there  nearly  all 
the  time.     There  might  one  or  two  have  come  in. 

Q.  Were  not  people  permitted  to  come  into  the  room  during  the  night,  after  yott 
left  there  ? — A.  After  we  left  there  ? 

Q.  Yes,  sir. — A.  I  don't  know.     I  was  not  there;  I  left  when  the  box  left. 

Q.  Could  not  the  room  be  easily  entered  ? — A.  Well,  I  suppose  it  could ;  that  room? 
Yes,  sir.  Don't  think  it  had  any  lock  to  it.  I  suppose  any  one  could  get  in  there  that 
wanted  to.  But  then  that  was  after  we  left,  you  know.  I  don't  know  whether  any 
one  went  in  or  not.    The  votes  were  taken  down  to  the  hotel. 


LOWE    VS.    WHEELER.  147 

Q.  Was  it  not  generally  understood  at  that  box  that  Joseph  Wheeler  was  getting  a 
large  vote  that  day  during  the  election  ? — A.,  Well,  I  was  not  out  much  amongst  the 
people  ;  I  was  watching  over  the  box,  and  did  not  go  out  hut  very  little. 

Q.  Did  not  the  election  officers  report  that  that  was  so  ? — A.  The  general  opinion 
was  that  he  was  getting  over  the  Democratic  vote  there. 

Q.  Finally,  on  November  the  third  (3d),  when  the  vote  was  counted  out,  was  it  not 
shown  that  Joseph  Wheeler  had  but  one  hundred  and  eleven  (111)  votes? 

(Contestant  objects  to  this  question,  because  he  has  answered  it  three  times.) 

A.  Yes,  sir. 

Walter  W.  Simmons,  a  supporter  of  and  a  witness  summoned  by 
William  M.  Lowe,  testifies  on  January  4,  1881,  p.  452 : 

Q.  Did  you  have  anything  to  do  with  holding  of  the  Congressional  election  on  No- 
vember last  ? — A.  Yes,  sir ;  I  was  supervisor  at  box  number  2,  Courtland  precinct. 

Q.  You  made  out  that  report  two  days  after  the  election,  did  you  not? — A.  I  made 
it  out  the  next  morning  after  the  polls  were  closed  and  put  it  in  the  office. 

Q.  Did  you  not  state,  Mr.  Simmons,  two  or  three  times  during  the  day,  that  Joseph 
Wheeler  was  getting  a  large  vote  at  your  box  ? — A.  Yes,  sir ;  I  thought  you  were  get- 
ting a  larger  vote  than  you  really  did  get. 

Q.  You  state  that  the  objection  made  to  the  ticket  was  that  it  had  numerals  ? — A. 
Yes,  sir. 

Q.  Were  not  those  numerals  something  besides  the  names  of  the  persons  to  be  voted 
for  and  the  offices  to  which  they  were  to  be  chosen  ? 

(Contestant  objects  to  this  question,  because  it  calls  for  the  opinion  of  the  witness.) 

A.  I  suppose  it  is  something  besides  the  names  of  the  electors. 

Q.  Is  it  not  true,  Mr.  Simmons,  that  the  inspectors  commenced  counting  the  vote, 
and  that  they  then  poured  all  the  votes  back  in  the  box  and  dispersed  for  the  night  ? 
— A.  Well,  they  counted  until  about  2  o'clock  in  the  morning,  I  believe,  and  some  of 
them  discovered  that  they  had  made  a  mistake,  and  they  just  concluded  they  would 
bundle  up,  and  commence  and  recount  the  whole  box  the  next  morning ;  Mr.  Harris 
took  the  box,  and  went  to  the  hotel  that  night  and  locked  it  up  in  the  room  with  him, 
and  met  the  next  morning  and  finished  counting. 

Q.  Didn't  some  of  the  inspectors  or  clerks  get  sick? — A.  One  of  the  clerks  got  sick 
— Mr.  Branch. 

Q.  W^hen  they  met  the  next  morning,  were  you  present  to  s«e  them  count? — A. 
Yes,  sir. 

Q.  Is  it  not  true  that  they  poured  all  the  ballots  on  the  table,  and  sorted  them  out  f 
— A.  I  think  they  did ;  some  one  suggested  that  they  could  get  through  quicker  by 
counting  them  that  way ;  they  poured  them  on  the  table,  and  sorted  the  tickets,  to 
get  the  Republican  tickets  to  themselves,  and  the  Greenback  tickets  to  themselves, 
and  the  Hancock  Democratic  tickets  to  themselves. 

Q.  Is  it  not  true  that  this  room  where  you  held  the  election  was  an  open  room  that 
people  could  enter  at  pleasure? — A.  Well,  I  suppose  they  could  if  they  had  tried;  it 
was  a  pretty  shabby  old  concern ;  doors  were  kept  closed,  I  believe,  all  the  time  until 
they  closed  up. 

Q.  You  have  been  actively  engaged  in  politics,  have  you  not,  in  this  last  canvass  ? 
— A.  Yes,  sir  ;  I  have  taken  a  great  interest  in  politics  this  last  year. 

Q.  You  were  a  strong  supporter  of  Colonel  Lowe,  were  you  not? — ^A.  Yes,  sir. 

Q.  Mr.  Simmons,  did  or  not  the  friends  of  General  Wheeler  make  the  same  kind  of 
efforts,  so  far  as  you  know,  to  secure  the  colored  vote  that  friends  of  Colonel  Lowe 
did  ? — A.  I  suppose  they  did. 

Q.  No  man's  vote  was  refused  because  he  was  a  colored  man  ? — A.  Not  that  I  know  of. 

Q.  You  stated,  I  believe,  Mr.  Simmons,  that  the  inspectors  counted  the  vote  until 
2  o'clock  at  night  ? — A.  I  think  it  was  about  2. 

Q.  And  then  adjourned  until  the  next  morning;  then  they  had  another  count? — ^A. 
Yes,  sir. 

Q.  Were  the  votes  that  you  say  that  were  thrown  out  the  same  the  night  before 
that  they  were  the  next  morning  ? — A.  Yes,  sir. 

Q.  The  box  you  stated  was  taken  away  by  a  Mr.  Harris  and  left  in  his  custody  be- 
tween the  count  at  night  and  the  count  the  next  morning  ? — A.  Yes,  sir. 

Q.  What  were  Mr.  Harris's  politics? — ^A.  Well,  sir,  he  is  a  Democrat,  I  believe;  al- 
ways has  been. 

Q.  Was  he  a  friend  and  supporter  of  General  Wheeler?— A.  Yes,  sir;  I  believe  he 
Avas. 

Q.  By  General  Wheeler.  Don't  you  know  he  voted  for  Billy  McDonald  and  for 
Houston? — A.  My  opinion  is  that  he  voted  for  McDonald,  but  I  don't  know.  My 
opinion  is  he  voted  for  Houston  for  tax  collector,  too. 

Q.  Both  of  those  men  were  opponents  to  the  Democratic  party,  were  they  not  ? — ^A» 
Yes,  sir. 


148  DIGEST  OF  ELECTION  CASES. 

Q.  Is  not  it  your  opinion  that  Mr.  Harris  voted  for  Mr.  Houston  three  years  ago, 
also  ? — A.  Yes,  sir ;  it  is. 

W.  W.  SIMMONS. 

J.  J,  BEEivrER,  page  1128,  testifies  as  follows  : 

Q.  Please  state  your  name,  age,  where  you  live,  and  how  long  you  have  resided 
there. — A.  J.  J.  Beemer  is  my  name  ;  I  am  in  my  forty-tirst  year;  I  live  at  Courtland ; 
ill!  my  life,  except  six  years  in  Huntsville,  when  I  was  a  boy,  and  the  time  I  was  ab- 
sent in  the  war. 

Q.  Please  state  who  were  appointed  inspectors  of  the  election  held  at  box  No.  2 
in  Courtland  on  November  2,  1880,  for  member  of  Congress  and  Presidential  electors, 
iind  state  their  politics. — A.  James  Montgomery,  an  avowed  Greenbacker;  J.  J. 
Ueemer,  an  independent  voter;  and  John  H.  Harris,  also  an  independent  voter. 

Q.  Please  state  if  you  are  well  acquainted  with  the  voters  of  Courtland  precinct, 
and  their  political  sentiments. — A.  I  think  I  am  well  acquainted  with  the  voters  of 
the  Courtland  precinct  and  their  political  sentiments. 

Q.  For  whom  was  James  Montgomery^  and  M.  M.  Butcher  for  Congress? — A.  I  know 
that  James  Montgomery  was  for  Lowe,  and  my  belief  is  that  Butcher  was  also  for 
Ijowe. 

#  *  i"  *  *  #.# 

Q.  Is  it  true  or  not  that  when  you  first  counted  out  the  ballots  after  the  polls  were 
closed  a  mistake  was  made  in  the  count,  and  that  you  then  adjourned  over  until  next 
<iay,  and  that  Mr.  Harris  took  charge  of  the  box  until  you  met  next  morning? — A.  It 
as  true. 

In  answer  to  another  question,  Mr.  Beemer  testified,  page  1129: 

General  Wheeler  got  between  seventy-five  and  one  hundred  white  votes  at  that  box, 
and  the  colored  men  who  voted  for  him  were  known  to  be  for  him. 

T.  H.  Jones,  page  1087,  testified: 

The  politics  of  the  inspectors  at  Courtland  box  No.  2  was  as  follows:  One  a  Green- 
backer,  and  the  other  two  had  been  accustomed  to  vote  split  tickets. 

The  evidence  shows  that  there  were  no  ropes  put  up,  as  required  by 
Saw,  and  that  the  persons  who  were  distributing  Garfield  and  Wheeler 
tickets  were,  in  most  cases,  close  to  the  window,  and  saw  the  men  hand 
in  their  votes,  and  the  proof  is  positive  and  uncontradicted  that  Gar- 
field, and  Wheeler  ballots  were  voted  which  were  not  counted. 

Green  Jones,  pages  1065  and  1066,  testifies  that  he  was  at  Court- 
land  box  No.  2  all  day  November  2,  1880,  working  in  the  interest  of 
Joseph  Wheeler  for  Congress,  and  that  he  got  twenty-five  colored  men 
to  vote  for  General  Wheeler  on  the  Garfield  and  Arthur  ticket.  He 
testifies  that  he  issued  these  twenty  five  tickets,  and  saw  them  put  the 
tickets  in  the  hands  of  the  inspectors;  that  a  great  many  colored  men 
voted  that  kind  of  ticket  at  that  box  that  day ;  that  there  were  a  num- 
ber of  p'ersons,  both  white  and  colored,  working  with  the  colored  people 
to  get  them  to  vote  the  Garfield  and  Wheeler  ticket  that  day. 

T.  N.  Kirk  swore  that  the  colored  men  thought  they  had  as  good  a 
right  to  vote  for  Wheeler  as  for  Lowe,  as  long  as  both  were  on  the  Gar- 
field ticket.     (See  pages  1067  and  1068.) 

Kirk  also  swore  that  he  voted  for  Wheeler,  and  got  ten  other  colored 
men  to  vote  for  him  also  at  Courtlandt  box  No.  2. 

Joe  Owens,  page  1069,  testifies  as  follows: 

I  gave  out  seventeen  tickets  with  the  name  of  Joseph  Wheeler  on  them,  who  promised 
to  vote  the  ticket,  and,  I  think,  they  all  voted  those  tickets ;  but  I  know  seven  of  them 
voted  the  Wheeler  ticket  for  Congress,  at  Courtland  box  No.  2,  because  I  saw  them 
vote  the  tickets  which  I  gave  them. 

He  testifies  that  all  these  men  were  colored  men. 

Eobert  Beard,  page  1072,  testified  that  he  got  three  colored  men  to 
vote  for  Wheeler  at  boxes  1  and  2  at  Courtland,  and  that  he  voted  for 
Wheeler  himself;  that  a  great  number  of  colored  men  voted  the  Wheeler 
ticket;   and  that  a  number  of  persons,  both  white  and  colored,  were 


LOWE    VS.    WHEELER.  14,9 

'W'orking  to  get  them  to  vote  for  the  Garfield  and  Wheeler  ticket;  aud 
that  the  impression  was  that  most  of  the  colored  men  were  voting  that 
ticket. 

Henry  Clay  Jones,  page  1074,  testifies  that  he  got  thirty-six  colored 
men  t€  vote  the  Garfield  and  Wheeler  ticket  at  Courtland  box  No.  2, 
Nov.  2, 1880,  also  that  a  great  number  of  colored  men  voted  that  ticket 
that  day;  that  this  was  a  general  impression,  and  that  he  knew  it  to  be 
true  because  he  saw  them  vote  it. 

James  Brown,  pago  1077,  testifies  that  he  voted  a  Garfield  and 
Wheeler  ticket,  aud  got  another  colored  man  to  vote  the  same  kind  of 
ticket,  and  that  he  was  a  colored  man. 

Quintas  Jones,  page  1080,  testified  that  he  got  seven  colored  men  to 
vote  the  Garfield  and  Wheeler  ticket. 

Isaac  Jones,  page  1088,  testified  that  he  got  ten  colored  men,  includ- 
ing himself,  to  vote  the  Garfield  and  Wheeler  ticket  at  Courtland  box. 
No.  2,  on  November  2, 1880. 

Shadrach  Kirk,  page  1090,  testified  that  he  got  four  colored  men,  in- 
Lcluding  himself,  to  vote  the  Garfield  and  Wheeler  ticket  on  November 
[2,  1880,  and  that  most  of  the  colored  men  were  voting  that  ticket  that 
May. 

Patrick  Jones,  page  1092,  testified  that  he  was  certain  he  got  seven 
colored  men,  including  himself,  to  vote  the  Garfield  and  Wheeler  ticket 
at  Courtland  on  November  2,  1880. 

Frank  Clay,  page  1095,  testified  that  he  got  nine  colored  men,  includ- 
ing himself,  to  vote  the  Garfield  and  Wheeler  ticket  at  Courtland  box 
No.  2. 

Malachi  Swope,  a  colored  man,  page  1098,  testified  that  he  voted  th© 
Garfield  and  Wheeler  ticket. 

Ben  Jones,  page  1108,  testified  that  he  got  thirteen  colored  men  to 
vote  the  Garfield  and  Wheeler  ticket  at  Courtland  box  No.  2,  on  No- 
I  vember  2,  1880. 

Corodell  Swoope,  colored,  page  1111,  testified  that  he  voted  the  Gar- 
field and  Wheeler  ticket  at  Courtland  on  November  2,  1880. 

The  evidence  of  T.  H.  Jones,  pages  1086  and  1087  of  the  record,  is  as 
follows: 

Questiou.  Where  were  you  on  election  day,  November  2,  1880? — Answer.  At  the 
Courtland  box. 

Q.  lu  whose  interest  did  you  work  that  day  f — A.  I  was  working  with  the  colored 
men  to  induce  them  to  vote  for  Joseph  Wheeler. 

Q.  Please  state  how  many  tickets  you  gave  out  to  colored  men  who  promised  to  vote 
for  Joseph  Wheeler. — A.  I  did  not  count  them;  I  suppose  fifty  or  sixty. 

Q.  Are  you  satisfied  that  these  fifty  or  sixty  tickets  were  voted  by  colored  men? — 
A.  I  am  satisfied  these  tickets  were  voted  as  well  as  a  man  could  be  satisfied  with 
anything  which  happens  in  ordinary  aff^airs  of  life.  I  was  near  the  polls  and  gave  out 
the  tickets  to  colored  men  who  promised  to  vote  them,  and  saw  many  of  them  vote 
them  at  the  polls ;  there  were  no  ropes  stretched,  so  we  were  enabled  to  go  up  close  to 
■  the  window  where  they  put  in  the  votes ;  those  that  I  had  doubts  about  I  noticed  that 
they,  voted  the  ticket  I  gave  them ;  those  that  I  had  perfect  confidence  would  vote  the 
ticket  I  gave  them  1  did  not  take  pains  to  observe. 

Q.  Have  you  a  ticket  similar  to  those  you  gave  the  colored  men  to  vote  f  If  so,  please 
mark  your  initials  upon  it  and  make  it  an  exhibit  to  your  deposition. — ^A.  I  have 
.done  so. 


150  DIGEST  OF  ELECTION  CASES. 

For  Electors  for  Presiden  t 

and  Vice-President  of 

the  United  States : 

GEOEGE  TURNER. 

WILLARD  WARNER. 

LUTHER  R.  MARTIN. 

CHARLES  W.  BUCKLEY. 

JOHN  J.  MARTIN. 

BENJAMIN  S.  TURNER. 

DANIEL  B.  BOOTH. 

WINFIELD  S.  BIRD. 

NICHOLAS  S.  M'AFEE. 

JAMES  S.  CLARKE. 

For  Representative  in 
Congress  from  the  Eighth         '     " 
Congressional  District :        , 

JOSEPH  WHEELER. 

Q.  What  were  these  tickets  understood  to  be  by  the  colored  men  f — A.  They  were 
nnderstood  to  be  tickets  with  Garfield  and  Arthur  electors,  with  the  name  of  Joseph 
Wheeler  qu  it  for  Congress;  they  all  understood  that  in  voting  the  ticket  they  were 
voting  for  Garfield  and  Arthur  for  President  and  Vice-President,  and  for  Wheeler  for 
Congress. 

Q.  Was  it  or  not  at  box  No.  2  that  these  tickets  were  voted  T — A.  The  great  bulk.of 
them  voted  at  box  No.  2,  but  some  few  of  them  voted  at  box  No.  1.  I  voted  at  box 
No.  1  late  in  the  evening,  when  the  voting  was  pretty  much  all  over.  I  voted  a  Han- 
cock ticket,  with  Wheeler  on  it  for  Congress. 

Q.  State  the  names  of  all  the"  inspectors  at  box  No.  2. — A.  James  Montgomery,  John 
H.  Harris,  and  J.  J.  Beemer. 

Q  State  the  politics. — A.  Montgomery  is  a  Greenbacker,  and  the  others  have  been 
accustomed  to  vote  split  tickets. 

Q.  State  the  names  of  the  inspectors  at  box  No.  1  and  their  politics. — A.  When  they 
commenced  the  inspectors  were  "Samuel  Ashtou,  a  Republican ;  A.  J.  Morris,  a  Re- 
publican; and  James  Galey,  a  Greenbacker;  but  they  changed  and  put  in  T.  A. 
Tatham,  a  Democrat,  in  place  of  A.  J.  Morris,  Republican,  who,  however,  remained 
and  acted  as  clerk. 

Q.  Was  there  a  "Republican  supervisor  at  box  No.  1 1 — A.  Yes. 

Q.  Was  there  a  Democratic  supervisor  at  box  No.  1  ? — A.  No. 

Q.  Please  state  what  the  general  impression  was  when  it  was  announced  on  Novem- 
ber 3,  the  day  after  the  election,  that  Joseph  Wheeler  had  but  one  hundred  and  eleven 
votes"  counted  for  him  at  box  No.  2, — A.  It  was  a  matter  of  great  surprise,  as  from  the 
way  the  votes  went  in  it  was  thought  Wheeler  votes  would  be  two  or  three  times  as 
large  as  was  counted  for  him. 

Q.  Please  state  the  politics  of  the  party  opposed  to  the  Democratic  party  for  the 
last  nine  years. — A.  In  1871  and  1872  the  candidates  for  the  legislature  and  county 
officers  called  themselves  Independents,  and  it  was  the  same  up  to  about  1877 ;  then 
they  assumed  the  name  of  Greenbackers.  There  have  been  no  candidates  for  county 
officers  for  many  years  on  square  Republican  principles,  except  Peter  Walker  and 
Jobn  Bell,  who  ran  for  the  legislature  in  1878.  At  each  President's  electioa  the  Re- 
publican electors  have  been  voted  for  in  this  county. 

Q.  Please  state  what  inflaences  you  understand  have  been  and  are  brought  to  bear 
upon  the  colored  people  to  induce  them  to  vote  for  the  Greenback  and  Independent 
candidates. — A.  The  influence  of  fear  and  intimidation,  to  a  very  great  extent,  is 
brought  to  be  r ;  they  are  taught  that  if  they  do  not  vote  for  these  Greenback  and 


LOWE    VS.    WHEELER.  151 

Independent  candidates,  pursuant  to  the  direction  of  their  leaders,  that  the  least  pun- 
ishment which  would  be  inflicted  upon  them  would  be  ostracization,  and  that  they 
-would  be  denounced  by  theircolored  associates  as  traitors  to  their  race;  they  also  have 
fear  of  bodily  harm  and  harm  to  their  property  unless  they  vote  the  ticket  dictated 
by  their  leaders.  In  1878  Peter  Walker  and  John  Bell  tried  to  run  for  the  legislature 
on  the  Republican  ticket,  and  Peter  Walker  particularly  was  so  threatened  and  in- 
timidated aud  abused  that  he  was  afraid  to  openlj^  distribute  his  tickets.  I  was  in- 
formed that  he  was  so  terror-stricken  and  alarmed  that  he  was  in  great  fear  that  his 
house  would  be  burned  and  that  he  would  be  killed.  Samuel  Haynes,  a  very  intelli- 
gent colored  man,  has  just  told  me  that  the  prevailing  influence  brought  to  bearupon 
the  colored  mau  to  make  him  vote  for  the  Greenback  party,  or  some  party  opposed  to 
the  Democratic  party,  was  the  conviction  and  constant  threats  that  they  would  be 
ostracized  by  their  race  unless  they  did  so.  He  also  said  that  no  matter  how  beloved 
and  popular  a  candidate  might  be,  aU  his  prospects  would  be  blasted  if  he  was  in  sup- 
port of  the  Democratic  party. 

Q.  Do  colored  men  when  they  vote  the  Democratic  ticket  want  it  kept  a  secret  f — 
A.  Yes. 

THOS.  H.  JONES. 

Witness: 

Jos.  F.  Hill. 

This  conclusively  shows  that  there  was  fraud  at  this  box.  It  shows 
that  Joseph  Wheeler  got  at  least  100  to  150  Garfield  and  Arthur  votes. 
^^  The  proof  also  shows  that  Wheeler  received  at  least  75  to  100  white 
Democratic  votes  at  that  box. 

There  can  be  no  question  but  that  this  box  must  be  rejected. 

The  proof  comes  from  the  witnesses  and  friends  of  Colonel  Lowe. 

As  some  point  was  made  regarding  the  politics  of  Mr.  Harris,  who 
<3onstituted  himself  the  custodian  of  this  box,  we  have  taken  some  trou- 
ble to  review  the  subject,  and  we  present  the  following  summary  of  the 
evidence  which  bears  on  this  subject. 

Before  proceeding  to  discuss  this  evidence  we  must  remark  that  the 
proof  shows  that  this  evidence  was  all  written  down  by  a  stenographer 
(who  was  employed  by  Mr.  Lowe),  aud  was  afterwards  written  out  in 
longhand  when  there  was  no  notary  public  present. 

Therefore,  in  justification  to  Mr.  Reynolds  and  Mr.  Harris,  we  may 
conclude  that  it  was  not  written  down  as  it  was  given. 

In  discussing  the  evidence  we  simply  discuss  what  Mr.  Lowe's  law- 
yers aud  stenographer  have  i)laced  in  the  record. 

Mr.  Lowe's  witness  Mr.  Reynolds,  who  the  record  shows  to  be  very 
earnest  for  Lowe,  who  swore  he  lived  in  Courtland,  which  is  43  miles  from 
Huntsville,  and  who  went  there  voluntarily,  passing  through  parts  of 
four  counties,  viz,  Lawrence,  Morgan,  Limestone,  and  Madison,  to  tes- 
tify as  a  witness  for  Mr.  Lowe,  when  the  law  did  not  require  him  to 
leave  his  own  county  to  give  evidence;  who  puts  in  his  evidence,  page 
446,  the  disgraceful  Stevenson  circular ;  who,  when  he  saw  how  impor- 
tant it  was  to  Lowe  to  prove  the  integrity  of  the  box,  testified,  page  111^, 
in  answer  to  Wheeler's  first  question,  that  the  vote  at  that  box  was 
counted  out  according  to  law,  and  to  the  second  question  that  he  saw 
the  count,  and  to  the  third  question  that  it  was  counted  as  votes  are 
generally  counted. 

Mr.  Reynolds's  own  evidence  shows  that  he  knew  that  this  statement 
was  not  correct.  It  shows  that  he  knew  that  the  vote  was  counted  the 
next  day  in  violation  of  law,  and  that  the  manner  of  counting  was  in 
violation  of  law. 

He  knew  there  were  what  were  called  straight  Republican  tickets, 
straight  Democratic  tickets,  and  Garfield  and  Wheeler  tickets. 

He  knew  that  to  sort  them  out,  and  count  as  he  finally  admits  they 
did,  would  be  an  injury  to  Wheeler. 

He  evades  the  fourth  and  fifth  questions,  and  it  was  not  till  the  sixth, 
■question  came  that  he  admitted  the  box  was  carried  off  by  Mr.  Harris, 


152  DIGEST    OF    ELECTION    CASES. 

Then  follows  a  series  of  answers  which  appeared  to  be  efforts  to  pre- 
vent the  development  of  the  fact  that  the  box  was  without  a  lock. 

At  bottom  of  page  445  he  says  he  thought  Mr.  Harris  was  a  Democrat^ 
but  the  committee  must  remember  that  many  witnesses  who  supported 
Colonel  Lowe  testify  that  they  thought  both  they  and  Colonel  Lowe  were 
Democrats. 

Kichard  H.  Lowe  swears,  page  160,  that  he  was  a  Democrat,  and  a 
supporter  and  admirer  of  Colonel  Lowe,  and  anxious  to  see  him  elected;: 
and  further  he  says  of  Colonel  Lowe,  page  166,  "  I  think  he  is  a  Jeffer- 
sonian  Democrat,"  and  on  page  164f  he  says  Colonel  Lowe  claimed  to  be 
a  Democrat  of  the  old  style — a  Jeffersonian- Jacksoniau  Democrat. 

E.  H.  Lowe  also  swears,  page  173^ : 

I  have  heard  Colonel  Lowe  declare  that  any  one  who  said  that  he  was  a  Republican 
was  a  liar. 

Q.  You  have  heard  him  frequently  declare  that,  have  you  not  ? — A.  I  have  heard  him 
declare  that ;  how  frequently  I  cannot  remember.  . 

And  on  pages  166  to  172  of  his  deposition  appear  the  manifestoes  of 
Colonel  Lowe,  which  certainly  show  extreme  opposition  to  the  principle* 
advocated  by  the  Kepublican  party. 

R.  H.  Lowe  also  exhibits  Colonel  Lowe's  manifesto  of  September  20^ 
1880,  in  which  he  appeals  for  support  to  Greenbackers,  Democrats,  and 
Independents,  and  does  not  even  ask  Republicans  to  vote  for  him. 

William  C.  Summers,  a  supporter  of  Lowe,  a  witness  for  Lowe,  and  au 
inspector  of  election,  testifies,  page  1353|,  that  he  is  a  Jackson  Demo- 
crat, and  Colonel  Lowe  claimed  to  be  a  Democrat,  and  that  he  had  read 
some  speeches  of  Colonel  Lowe  in  which  he  claimed  to  be  a  Democrat^ 
and  heard  his  supporters  talk  so;  and  on  page  1349J  O.  H.  P.  WiHiams,. 
a  witness  for  Colonel  Lowe,  testified  twice  that  Lowe  in  his  speech 
abused  the  Republican  party. 

Mr.  Milton  also  swears,  page  320,  he  was  a  Democrat,  and  yet  he  was^ 
a  worker  for  and  voted  for  Colonel  Lowe.  He  also  swears  that  Deputy 
Marshal  Stockton  was  a  Democrat,  but  he  also  voted  for  Lowe,  and  he 
and  two  other  Lowe  men  were  appointed  as  United  States  marshals  to 
control  the  election  at  Hunt's  Store. 

Even  Hertzler  tried  to  pass  himself  off  as  a  supporter  of  Wheeler,  in 
the  hope  it  would  help  out  his  false  testimony  about  Lanier's,  and  help- 
to  throw  out  that  box. 

He  swears,  page  184^,  in  answer  to  the  inquiry  if  he  did  not  vote  for 
Lowe:  "^o;  I  always  vote  the  Democratic  ticketJ"  He  afterwards  was 
compelled  to  admit  that  he  voted  for  Lowe,  but  said  he  always  consid- 
ered Lowe  as  a  Democrat. 

This  character  of  evidence,  which  runs  through  the  record,  show* 
that  Lowe's  lawyers  tried  to  make  it  appear  that  all  the  election  officers 
who  called  themselves  Democrats  were  supporters  of  Wheeler,  when  the 
fact  was  frequently  the  contrary. 

Such  evidence  as  this  shows  what  was  meant  by  their  Democracy. 

There  is  not  a  particle  of  positive  proof  that  Mr.  Harris  supported  or 
voted  for  Wheeler. 

It  must  be  borne  in  mind  that  this  evidence  of  Mr.  Reynolds  was  writ- 
ten down  in  short-hand  by  Mr.  Buell,  the  friend  of  Colonel  Lowe ;  yet 
even  with  this,  Mr.  Reynolds  informs  us  of  his  opinion  of  the  character 
of  the  man  who  became  the  box  custodian. 

He  says  of  him,  bottom  of  page  445 :  "  He  might  say  he  voted  for  one 
man,  and  then  not  do  it." 

Mr.  Reynolds  also  says,  page  445^ : 

The  general  opinion  was  that  he  (Wheeler)  was  getting  over  the  Democratic  vote- 
there. 


LOWE    VS.    WHEELER.  15^ 

The  question,  and  what  purports  to  be  an  answer  to  the  question, 
found  on  bottom  of  page  447,  is  easily  explained.  Every  lawyer  who^ 
has  examined  witnesses  knows  that  frequently  when  asked  a  question 
they  repeat  the  question  in  an  interrogative  manner  to  be  certain  they 
understood  the  question  correctly. 

This  is  particularly  the  case  with  reluctant  witnesses  who  are  trying^ 
to  make  the  best  show  possible  for  the  party  in  whose  interest  they  are 
being  examined.  This  was  eminently  the  case  here.  Mr.  Reynolds  re- 
peated the  question  verbatim,  and  Mr.  Lowe's  friend,  the  stenographer, 
writes  down  Mr.  Reynolds's  question,  omitting  the  interrogation  mark, 
and  thus  makes  it  appear  that  it  was  his  answer. 

This  could  not  be  corrected,  because  no  one  but  the  stenographer 
could  read  the  short-hand  notes ;  and  therefore  no  one  but  the  stenog- 
rapher could  know  with  any  certainty  what  was  meant  by  his  short- 
hand marks. 

Mr.  Simmons,  a  Republican  and  a  Lowe  man,  and  supervisor,  and 
witness  for  Colonel  Lowe,  was  more  willing  to  admit  that  the  box  was 
carried  off  by  one  of  the  inspectors,  and  also  says,  page  453J,  that  the 
next  day  they  sorted  out  the  tickets  into  three  piles — Republican  ticket* 
to  themselves,  Greenback  tickets  to  themselves,  and  Hancock  tickets 
to  themselves. 

This  certainly  impaired  Wheeler's  chances  to  get  the  Garfield  tickets 
with  his  name  on  them  counted  for  him. 

When  Wheeler  heard  this  he  felt  it  so  keenly  that  he  sent  in  his  sworn 
protest  against  the  counting  of  said  box,  which  is  found  on  bottom  of 
page  1062. 

Had  the  contestee  known  of  the  other  irregularity  would  he  not  have 
included  that  in  his  protest! 

Simmons  mentions,  page  455f ,  three  different  elections  where  he  states 
it  as  his  opinion  that  Harris  voted  against  the  Democratic  party. 

On  page  453J  he  states  that  he  said  two  or  three  times  during  the 
day  that  Wheeler  was  getting  a  larger  vote  than  he  did  get,  and  that 
he  thought  so  too. 

Now,  Mr.  Beemer  swears  positively,  page  1128,  that  Harris  was  an 
Independent  voter;  and  Mr.  Jones  swears,  page  1087,  that  Mr.  Harris 
was  accustomed  to  vote  split  tickets.  Also  T.  A.  Tatham  swears,  page 
1106,  that  John  H.  Harris,  who  acted  as  inspector  at  Courtland  box  No. 
2,  claimed  to  be  an  Independent  voter. 

He  also  says  that  Harris  supported  Sam  Houston  and  W.  B.  McDon- 
ald and  Alex.  Heflin  in  opposition  to  the  Democratic  party;  and  it  will 
be  observed  that  this  same  Heflin  swears,  page  460,  that  he  too  was  a 
Democrat,  but  admits  that  at  the  last  election  (namely  Nov.  2, 1880)  he 
voted  the  Greenback  ticket ;  he  also  admits  he  was  elected  sheriff  on 
the  Greenback  ticket  in  August,  1880.     (See  pp.  460^,  461^.) 

Now,  this  man  Heflin,  after  giving  testimony  against  Wheeler  which 
shows  falsity  on  its  face,  tries  to  bolster  it  up  by  trying  to  create  an  in- 
ference that  he  was  a  Democrat.  He  was  just  as  much  a  Democrat  as 
men  who  supported  him  three  months  before,  when  he  ran  as  a  Green- 
backer  for  sheriff.  This  shows  the  object  of  Lowe's  witnesses  in  calliug^ 
the  inspector  a  Democrat.  They  wished  to  create  an  impression  that 
the  Courtland  box  was  not  manipulated  to  the  detriment  of  Wheeler. 

Had  Mr.  Harris  been  put  on  the  stand  we  cannot  saj^  what  his  evi- 
dence would  have  been.  Mr.  Reynolds  says,  "£^e  might  say  he  voted  for 
one  man  and  then  not  do  it.''''  Contestee  could  not  have  been  expected 
to  make  Mr.  Harris  a  witness. 

The  fact  that  the  box  was  carried  off  in  violation  of  law  impeached  it^ 


154  DIGEST    OF   ELECTION   CASES. 

and  it  was  Mr.  Lowe's  duty  to  liave  shown  that  its  integrity  was  main- 
tained. Mr.  Lowe's  lawyers  were  fully  informed  in  the  commencement 
of  the  taking  of  testimony -in-chief  that  the  box  was  carried  off  and 
kept  all  night  unlocked.  If  it  had  been  possible  for  Mr.  Lowe  to  have 
procured  evidence  to  sustain  the  integrity  of  the  box  it  seems  to  us  he 
would  certainly  have  done  so. 

We  respectfully  submit  that  the  evidence  conclusively  proves  that 
■Oourtland  box  No.  2  was  managed  entirely  by  men  who  were  at  least 
not  the  friends  and  supporters  of  Wheeler. 

Some  may  have  been  Hancock  men,  but  certainly  the  evidence  does 
not  show  they  were  Wheeler  men. 

When  the  ballots  were  partly  counted  out  one  of  these  men  claimed 
they  had  made  a  mistake,  and  to  correct  this  they  put  all  the  ballots  in 
■a  rough  box,  and  Mr.  Harris  carried  the  box  to  his  room,  kept  it  all 
night,  returned  with  it  the  next  morning,  when  it  appears  from  the  evi- 
dence the  ballots  were  easily  though  illegally  counted  in  a  very  short 
period,  when  a  report  was  made  showing  419  votes  for  Lowe  and  111 
votes  for  Wheeler. 

Mr.  Lowe's  friends  admit  that  these  inspectors  worked  from  five 
o'clock,  the  time  the  polls  closed,  until  two  o'clock  next  morning,  and 
during  those  nine  hours  they  claim  they  had  counted  less  than  six  hun- 
dred liallots. 

These  men  wish  the  committee  to  believe  that  they  acted  with  proper 
rapidity,  and  yet  failed  to  count  out  60  ballots  an  hour,  when  it  was 
evident  that  all  these  ballots  could  have  been  easily  counted  out  in  two 
or  at  most  three  hours. 

Above  and  beyond  this  Mr.  Lowe's  witness  Mr.  Simmons,  page  453, 
swears  that  after  counting  nine  hours  they  discovered  they  had  made  a 
mistake,  and  Mr.  Lowe's  other  witness,  Mr.  Eeynolds,  swears,  page  444, 
that  after  the  nine  hours  they  yet  lacked  right  smart  of  completing  the 
count. 

Is  it  not  clear  that  there  was  wrong  connected  with  this  box? 

These  ballots  could  have  been  easily  counted  out  in  two  or  three 
hours,  and  by  seven  or  eight  o'clock  a  correct  report  could  have  been 
completed,  and  yet  we  find  these  men  at  two  o'clock  in  the  morning  had 
done  nothing  but  count  a  part  of  the  ballots,  and  the  only  result  of  these 
nine  hours'  work  was  the  discovery  that  they  had  made  a  mistake. 

The  committee  cannot  see  how  it  was  possible  these  friends  of  Colonel 
Lowe  discovered  a  mistake,  when  Mr.  Eeynolds  says  they  lacked  right 
smart  of  counting  all  the  ballots 

Does  it  not  show  that  all  this  dallying  of  nine  hours  gave  an  oppor- 
tunity to  corruptly  tamper  with  the  ballots  ? 

Does  it  not  show  that  the  mistake  discovered  was  that  Wheeler  had 
more  ballots  than  some  one  wished  him  to  have,  and  some  one  therefore 
found  it  necessary  to  secretly  fix  up  the  box  to  meet  the  requirements  of 
Mr.  Lowe's  managers? 

They  did  not  have  Wade  Blankenship  or  William  Wallace  there  to 
examine  the  wrists  and  sleeves  of  free  Americans  and  compel  them  to 
vote  for  Mr.  Lowe,  and  the  evidence  is  conclusive  that  at  least  a  hun- 
dred Democrats  and  at  least  a  hundred  Republicans  voted  for  Wheeler. 

The  Wheeler  ballots  were  in  the  box,  and  the  difficulty  of  changing 
them  with  five  or  six  people  present  was  staring  them  in  the  face. 

We  respectfully  submit  that  there  has  nev^er  been  stronger  evidence 
before  Congress  assailing  the  integrity  of  a  box  than  we  have  here  pre- 
sented. 

If  Mr.  Reynolds  had  been  a  friend  of  Wheeler  would  he  have  gone 


LOWE    VS.    WHEELER.  "     155 

voluutarily  43  miles  to  testify  for  Mr.  Lowe  ?  Would  he  have  resisted 
each  effort  to  develop  these  facts,  as  his  evidence  shows  he  did?  (See 
page  444.)  His  anxiety  was  so  great  that  he  swore,  page  447§,  that  the 
votes  were  counted  fairly.     He  says : 

I  watched  over  it  myself. 
I  saw  it  was  done  well, 
I  was  in  the  house. 

And  then  he  afterwards  admits  this  was  not  true,  and  he  swears,  top 
of  page  448: 

I  was  not  absent  but  a  few  minutes  during  the  counting  in  the  daytime  in  the  last 
couut. 

And  top  of  page  445  he  says : 

Well,  I  was  not  there  all  the  time,  but  I  was  there  nearly  all  the  time. 

We  could  go  on  with  this  discussion,  but  the  House  will  certainly 
admit  that  it  requires  nothing  further  to  show  that  this  box  must  be 
rejected. 

The  evidence  that  the  ballots  were  tampered  with  at  this  poll  is  very 
much  stronger  than  at  ^'■Arredonda  poW^  (case  of  Bisbee  v.  Finley),  and 
we  might  add  that  it  is  stronger  than  any  other  case  before  this  com- 
mittee. 

The  violation  of  law  by  the  inspectors  is  proven  by  Mr*  Lowe's  wit- 
nesses, and  most  of  the  evidence  is  given  by  Republicans. 

It  i)roves  positively  that  there  was  palpable  violation  of  the  law  and 
flagrant  fraud  at  this  box. 

This  fraud  was  distinctly  charged  in  the  answer  to  the  notice  of  con- 
test, and  it  was  proved  by  the  evidence  of  numerous  witnesses,  and  not 
one  word  of  the  evidence  is  in  any  way  controverted. 

Harris  was  not  called  as  a  witness.  Where  he  took  the  box ;  how  he 
kept  it ;  whether  any  person  had  access  to  it  other  than  himself;  whether 
he  himself  examined  it,  or  did  anything  with  it  or  with  the  ballots  in  it 
during  these  hours  that  it  was  away  from  its  proper  custody  and  not 
subject  to  proper  supervision — as  to  all  these  things  the  evidence  is 
a  total  blank,  excei)t  as  above  alluded  to  and  hereafter  stated.  The 
next  morning  Mr.  Harris  brought  back  what  purported  to  be  the  box 
he  took  away  with  him,  and  the  contents  of  that  box,  whatever  they 
were,  were  counted ;  but  we  contend  that  the  proof  shows  that  the  bal- 
lots did  not  remain  the  same,  because  the  testimony  proves  that  at  that 
poll  the  contestee  received  at  least  200  votes,  whereas  there  was  only 
returned  for  him  111,  thus  showing  that  the  count  as  made  did  not  cor- 
respond with  the  ballots  as  cast.  We  submit,  therefore,  that  this  box 
must  be  rejected,  and  this  will  deduct  from  the  contestant  419  and  from 
the  contestee  111.  Now,  the  box  being  rejected,  as  it  certainly  must  be, 
then,  according  to  all  the  rulings  of  the  majority  of  the  committee  in 
otlier  cases,  and  according  to  the  plain  law  on  this  subject,  the  parties 
are  remitted  to  the  proof  of  the  ballots  actually  cast  for  them  respect- 
ively, and  it  being  proved  that  the  contestee  received  200  votes  at  that 
poll,  this  number  should  be  added  to  his  aggregate  vote. 

Before  concluding  we  feel  it  our  duty  to  allude  to  the  character  of 
evidence  which  Mr.  Lowe  has  presented  to  the  Committee  on  Elections. 

Evidence  by  deposition  is  in  derogation  of  common  law.  It  is  only 
by  virtue  of  statute  that  such  evidence  can  be  used  in  any  judicial  tri- 
bunals. 

The  supreme  court  of  Pennsylvania,  using  the  language  which  we 
find  in  every  elementary  work  on  evidence,  said: 


156  DIGEST    OF   ELECTION   CASES. 

The  taking  of  testimony  by  deposition  is  at  best  bnt  a  very  imperfect  vray  of  arriv- 
ing at  the  truth;  every  precaution  should,  therefore,  be  taken  to  guard  against 
abuses. 

We  approve  of  this  expression,  and  think  that  evidence  taken  with 
disregard  of  the  statutory  requirement  should  not  be  received. 

We  have  alluded  to  this  subject  in  referring  to  the  depositions  taken 
at  Lanier's,  but  we  think  it  requires  a  more  special  attention. 

The  following  are  the  provisions  of  the  Revised  Statutes  of  the  United 
States  material  to  the  point  now  under  consideration  : 

Sec.  122.  The  oflScer  shall  cause  the  testimony  of  the  witnesses,  together  with  the 
questions  proposed  by  the  parties  or  their  agents,  to  be  reduced  to  writing  in  his  pres- 
ence and  in  the  presence  of  the  parties  or  their  agents,  if  attending,  and  to  be  duly 
attested  by  the  witnesses  respectively. 

Sec.  127.  All  officers  taking  testimony  to  be  used  in  a  contested-election  case,  whether 
by  deposition  or  otherwise,  shall,  when  tlietakingof  the  same  is  completed,  and  with- 
out unnecessary  delay,  certify  and  carefully  seal  and  immediately  forward  the  same 
by  mail  addressed  to  the  Clerk  of  the  House  of  Representatives  of  the  United  States, 
Washington,  D.  C. 

The  corresponding  provisions  of  the  judiciary  act  of  1789  are  in  the 
following  words  : 

And  every  person  deposing  as  aforesaid  shall  be  carefully  examined  and  cautioned 
and  sworn  or  affirmed  to  testify  the  whole  truth,  and  shall  subscribe  the  testimony  by 
him  or  her  given  after  the  same  shall  be  reduced  to  writing,  which  shall  be  done  only 
by  the  magistrate  taking  the  deposition,  or  by  the  deponent  in  his  presence.  And  the 
depositions  so  taken  shall  be  retained  by  such  magistrate  until  he  deliver  the  same 
■with  his  own  hand  into  the  court  for  which  they  are  taken,  or  shall,  together  with  a 
certificate  of  the  reasons  as  aforesaid  of  their  being  taken,  and  of  the  notice,  if  any, 
given  to  tne  adverse  party,  be  by  him,  the  said  magistrate,  sealed  up  and  directed  to 
such  court  and  remain  under  his  seal  until  opened  in  -court. 

The  provision  that  the  deposition  must  be  reduced  to  writing  in  the 
presence  of  the  officer  is  common  to  the  contested-election  law  and  the 
judiciary  act  of  1789, 

It  is  obvious,  therefore,  that  decisions  of  the  Federal  courts  on  the 
provision  of  the  judiciary  act  for  the  writing  out  of  the  deposition  will 
be  authorities  in  cases  which  may  come  before  this  committee  under  the 
corresponding  provision  of  the  statute  relating  to  contested  elections. 

In  Bell  V.  Morrison,  1  Peters,  351,  Judge  Story,  delivering  the  opinion 
of  the  court — 

Held  that  under  section  30  of  the  judiciary  act  a  deposition  is  not  admissible  if  it^ 
is  not  shown  that  the  deposition  was  reduced  to  writing  in  presence  of  the  magis- 
trate. 

In  Edmonson  v.  Barrett,  2  Cranch  C.  C,  22**,  the  plaint;iff's  attorney 
offered  in  evidence  on  the  trial  the  deposition  of  John  Marshall,  of 
Charleston,  South  Carolina,  taken  before  the  Hon.  John  Drayton,  dis- 
trict judge  of  the  United  States.  The  certificate  of  the  judge  was  in  the 
following  words : 

District  of  South  Carolina,  «s  ; 

On  this  28th  day  of  May,  1818,  personally  appeareth  the  under-named  deponent, 
John  Marshall,  of  Charleston,  merchant,  before  me,  the  subscriber,  John  Draytou,  dis- 
trict judge  of  the  district  aforesaid,  and  being  by  me  carefully  examined,  cautioned, 
and  sworn  in  due  form  of  law  to  testify  the  whole  truth  and  nothing  but  the  truth 
relating  to  a  certain  civil  cause,  &c.,  &c.,  he  maketh  oath  to  the  deposition  above 
written,  and  subscribes  the  same  in  my  presence,  the  said  deposition  being  first  re- 
duced to  writing  by  the  deponent. 

The  attorney  for  the  defendant  objected  to  the  deposition  on  the 
ground  that  the  judge  had  not  certified  that  it  was  reduced  to  writing 
in  his  presence,  as  required  by  section  30  of  the  judiciary  act  of  1789. 

The  attorney  for  the  plaintiff  contended  that  it  was  to  be  presumed 
to  have  been  so  written  because  the  law  required  it. 


LOWE    VS.    WHEELER.  167 

But  the  court  unanimously  sustained  the  objection  and  rejected  the 
deposition. 

Ill  the  case  of  Pettibone  v.  Derringer,  4  Wash.,  215,  tried  in  the  cir- 
cuit court  of  the  United  States  for  the  3d  circuit,  at  Philadelphia,  in 
1818,  before  Justice  Washington,  of  the  Supreme  Court  of  the  United 
States,  and  District  Judge  Peters,  objection  was  made  on  the  trial  to 
the  introduction  of  a  deposition  on  the  ground  that  the  officer  who  took 
that  deposition  had  not  certified  that  it  was  reduced  to  writing  by  the 
witness  in  his  presence.    The  court  sustained  the  objection  and  held — 

That  a  deposition  taken  under  the  thirtieth  section  of  Jthe  judiciary  act  cannot  be 
used  unless  the  judge  certifies  that  it  was  reduced  to  writing  either  by  hiuibelf  or  by 
tlie  witness  in  his  presence. 

In  the  case  of  Kayner  v.  Haynes,  Hempst.,  689,  decided  by  the  United 
States  circuit  court  for  the  9th  circuit,  in  1854,  depositions  offered  by  the 
attorneys  for  the  defendant  were  objected  to  on  the  ground  that  the  mag- 
istrate/ailed to  state  that  the  depositions  were  reduced  to  writing  in  his  pres- 
ence^ and  the  objection  was  sustained  by  the  court. 

In  the  case  of  Cook  v.  Burnley,  11  Wall.,  657,  when  the  defendants' 
case  was  reached  in  the  course  of  the  trial,  the  defendants  offered  to 
read  a  deposition  taken  under  section  30  of  the  judiciary  act.  There 
was  no  certificate  by  the  magistrate  that  he  reduced  the  testimony  to 
writing  himself  or  that  it  was  done  by  the  witness  in  his  presence.  The 
deposition  was  excluded  by  the  district  court.  The  Supreme  Court  or 
the  United  States  said : 

Tliere  is  no  certificate  by  tlie  magistrate  that  he  reduced  the  testimony  to  writing 
himself  or  that  it  was  not  done  in  his  presence,  which  omission  is  fatal  to  the  depo- 
sition. 

In  Baylis  v.  Cochrane,  2  Johnson  (N.  Y.),  416,  Chief  Justice  Kent,  de- 
livering the  opinion  of  the  court,  said : 

The  manner  of  executing  the  commission  ought  not  to  be  left  to  inference,  but 
should  be  plainly  and  explicitly  stated.  It  would  be  an  inconvenient  precedent  and 
might  lead  to  great  abuse  to  establish  the  validity  of  such  a  loose  and  informal  sys- 
tem. Matters  which  are  essential  to  the  due  execution  of  the  commission  ught  to  be 
made  to  appear  under  the  signntnre  of  the  commissioners.  Among  these  essential 
matters  is  the  examination  of  the  witness  on  oath  by  the  commissioners  and  the  re- 
ducing of  his  examination  to  writing  by  them,  or  at  their  instance  and  under  their 
care.  We  are  accordingly  of  the  opinion  that  the  judgment  of  the  court  below  ought 
to  be  affirmed. 

While  the  particular  facts  in  this  New  York  case  differ  from  the  facts 
of  the  case  now  on  trial,  it  is  quite  unnecessary  to  suggest  the  forcible 
application  of  the  doctrine  of  that  case  to  this. 

The  case  of  Summers  v.  McKim  (12  S.  &  R.,  404)  is  a  very  strong  au- 
thority on  the  point  now  under  consideration.  There  was  at  the  time 
no  law  in  Pennsylvania  requiring  the  deposition  to  be  reduced  to  writ- 
ing in  the  presence  of  the  officer.  There  was  no  rule  of  court  to  that 
effect.  The  only  regulation  on  the  subject  was  a  rule  of  court  requiring 
the  deposition  to, be  taUn  before  a  justice.  But  Chief  Justice  Tilghman, 
delivering  the  opinion  of  the  court,  said : 

The  third  bill  of  exception  contains  two  distinct  points.  The  first  point  is  on  the 
admissibility  of  the  deposition  of  George  Leech ;  several  exceptions  were  made  to 
this  evidence,  but  there  was  one  which  was  decisive ;  and  as  it  involves  » Prin- 
ciple of  great  importance  in  practice,  I  am  glad  that  an  opportunity  is  offered 
'to  the  court  of  settling  it.  This  deposition  was  taken  under  a  rule  of  court  before 
la  justice  of  the  peace  of  Clearfield  County,  but  it  was  drawn  up  in  the  city  of  Lan- 
;  caster,  from  the  mouth  of  the  witness,  bv  Mr.  Hopkins,  counsel  for  the  defendant,  and 
iihen  sent  to  Clearfield  County  and  sworn  to  there.  Now,  although  the  character  ot 
•the  counsel  in  the  present  instance  puts  him  above  all  suspicion  of  unfair  dealing,  yet 
[it  would  be  a  practice  of  most  dangerous  tendency  if  depositions  so  t^ken  were  to  be 


158  DIGEST    OF    ELECTION    CASES.- 

admitted  as  evidence.  The  counsel  of  the  party  producing  the  witness  is  the  last 
person  who  should  be  permitted  to  draw  the  deposition,  because  he  will  naturally  be 
disposed  to  favor  his  client,  and  it  is  very  easy  for  an  artful  mau  to  make  use  of  such 
expressions  as  may  give  a  turn  to  the  testimony  very  different  from  what  the  witness 
intended.  I  know  that  depositions  are  sometimes  taken  in  this  manner  by  consent  of 
parties ;  and  when  the  counsel  on  both  sides  are  present  the  danger  is  not  so  great. 
bat  in  the  present  case  there  was  no  consent,  nor  was  the  counsel  of  the  plaiutiifs 
present.  ''The  rule  of  court  is  that  the  deposition  shall  be  taken  before  a  justice.  It 
ought,  therefore,  to  be  reduced  to  writing  from  the  mouth  of  the  witness  in  the  pres- 
ence of  the  justice,  though  it  need  not  be  drawn  by  him  ;  and  in  case  of  difference  of 
opinion  in  taking  down  the  words  of  the  witness  the  justice  should  decide.  In  chan- 
cery, if  the  counsel  of  one  of  the  parties  draws  the  deposition  before  the  witness  goes 
before  the  commissioners,  it  will  not  be  permitted  to  be  read  in  evidence.  (1  How. 
Ch.,  360.)  This  certainly  is  a  good  rule.  The  taking  of  testimony  by  deposition  is  at 
best  but  a  very  imperfect  way  of  arriving  at  the  truth :  every  precaution  should^ 
therefore,  be  taken  to  guard  against  abuses.  It  is  very  clear  to  me  that  the  mode  in 
which  the  deposition  of  George  Leech  was  taken  is  subject  to  great  abuse,  and  should 
be  put  down  at  once.     I  am  of  opinion,  therefore,  that  was  very  properly  rejected. 

See  also  the  following  cases :  United  States  v.  Smith,  4  Day,  121  j 
Eailroad  Co.  v.  Drew,  3  Woods  C.  Ct.,  692 ;  Beale  v.  Thompson,  8 Cranch^ 
70;  Shankriker  v.  Beading,  4  McL.,  240 ;  United  States  v.  Price,  2  Wash. 
C.  Ct.,  356 ;  Hunt  v.  Larpin,  21  Iowa,  484  5  Williams  v.  Chadbourue, 
6  Cal.,  559;  Stone  v.  Stillwell,  23  Ark.,  444. 

The  jproof  in  this  case  shows  : 

]ST. 

That  49  depositions  found  on  pages  34  to  266  and  302  to  452  of  the 
record  in  this  case  have  no  certificates  at  all,  and  the  proof  shows  that 
they  were  not  written  out  in  the  presence  of  the  commissioner  before 
whom  it  is  claimed  they  were  taken. 

2d. 

That  exhibits  were  attached  to  some  of  these  depositions  which  the 
witnesses  did  not  see. 

3d. 

That  exhibits  were  attached  to  depositions  which  were  not  correct 
^pieS  of  records  which  they  purport  to  represent. 

4th. 

That  a  transcript  from  the  probate  judge  of  Morgan  County  was 
changed,  and  that  matter  was  written  upon  said  transcript  after  it 
reached  the  hands  of  Mr.  Lowe  or  his  agents  or  attorneys,  and  the  mat- 
ter written  thereon  was  made  the  basis  of  an  argument  in  contestant's 
brief. 

5th. 

That  a  false  exhibit  was  filed  with  the  record  and  printed  in  the 
record  following  the  deposition  of  Lowe  Davis,  which  false  exhibit  was 
made  the  basis  of  an  argument  in  contestant's  brief. 

6th. 

That  the  affidavits  attached  to  the  motion  to  suppress  show  that  the 
certificate  attached  to  the  deposition  of  Mr.  Lowe  was  not  written  out 


I 


LOWE    VS.    WHEELER.  159 

and  attached  to  said  deposition  until  several  days  after  the  date  it  pur- 
ports to  have  been  so  written  out  and  attached. 

7th. 

That  the  so-called  deposition  of  William  Wallace,  James  Joaes,  John 
Kibble,  Alexander  Jamar,  and  50  other  witnesses  were  never  legally 
signed. 

8th. 

That  the  110  so-called  depositions  found  on  pages  1264  to  1340  of  th& 
record  are  without  any  certificate  whatever,  and  there  is  nothing  in  the 
record  to  show  that  any  of  the  witnesses  were  sworn,  or  that  any  of 
the  evidence  was  written  down  in  the  presence  of  any  commissioner. 

9th. 

That  the  so-called  depositions  taken  before  E.  P.  Shackleford  are  not 
certified  under  his  seal  as  required  by  law. 

10th. 

That  171  so-called  depositions  which  it  is  claimed  were  taken  before 
E.  W.  Figg,  esq.,  were  not  certified  and  sealed  and  forwarded  by  mail 
addressed  to  the  Clerk  of  the  House  of  Eepresentativee. 

The  record  shows  that  said  so-called  depositions  reached  the  Clerk  of 
the  House  of  Eepresentatives  through  a  corporation  called  an  express 
company.  It  shows  they  were  in  a  box  which  was  not  sealed  in  any 
way  whatever. 

It  also  shows  that  many  of  said  depositions  remained  out  of  the 
hands  of  the  commissioner  before  whom  it  is  claimed  they  were  taken 
from  two  to  three  months  before  being  so  illegally  transmitted  to  Con- 
gress. 

llTH. 

The  record  also  shows  that  depositions  which  were  taken  before  A. 
W.  Brooks,  found  on  pages  331  to  338,  were  not  taken  at  a  time  which 
the  law  allowed  said  depositions  to  be  taken,  and  it  further  shows  that, 
contrary  to  law,  they  were  transmitted  to  the  Clerk  of  the  House  of 
Eepresentatives  by  a  corporation  called  an  express  company,  and  not 
by  mail,  as  required  by  law. 

12th. 

The  record  shaws'that  fifty  witnesses  examined  before  A.  J.  Bentley^ 
at  Meridianville,  were  examined  without  giving  contestee  notice,  as 
required  by  law. 

That  Mr.  Lowe's  attorneys  gave  contestee  notice  they  would  take  said 
evidence  at  or  near  Pleasant  Hill,  and  upon  said  notice  they  proceeded  to 
and  did  take  said  evidence  at  Meridianville,  six  miles  from  Pleasant  Hill. 

That  when  the  place  of  taking  evidence  was  finally  discovered  by  Mr. 
Wheeler's  attorney,  the  commissioner  refused  to  allow  him  to  cross- 
examine  some  thirty  witnesses  who  were  examined  after  his  arrival ; 
and  it  further  shows  that  Lowe  Davis,  the  attorney  for  Mr.  Lowe,  wrote 


160  DIGEST    OF    ELECTION    CASES. 

down  the  evidence,  and  in  some  cases  wrote  it  down  to  convey  a  different 
and  contrary  meaning  from  that  given  by  the  witnesses,  and  the  record 
shows  that  this  illegally-taken  evidence  was  not  certified  as  required  by 
law,  and  that  it  was  not  transmitted  to  Congress  as  required  by  law. 

The  record  also  shows,  after  Mr.  Wheeler  had  facilitated  Mr.  Lowe's 
attorneys  in  taking  evidence  by  acknowledging  service  to  their  notices 
to  take  testimony,  these  same  attorneys  used  most  extraordinary  and 
unwarranted  means  to  embarrass  and  delay  Mr.  Wheeler  in  his  efforts  to 
take  testimony,  and  that  by  such  means  they  in  some  instances  stopped 
the  contestee  in  his  efforts  to  take  testimony. 

Mr.  Wheeler  made  and  filed  proper  and  seasonable  motion  to  suppress 
these  depositions,  supporting  by  affidavits  such  allegations  as  were  not 
apparent  on  the  record.  "* 

We  think  the  49  depositions  which  purport  to  have  been  taken  at 
Huntsville  before  R.  W.  Figg,  esq.,  and  the  110  which  purport  to  have 
been  taken  before  him  at  Lanier's,  and  the  30  which  purport  to  have 
been  taken  before  A.  J.  Bentley,  at  Meridianville,  should  be  suppressed 
and  not  considered  in  this  case. 

CONCLUSION. 

We  now  make  the  following  summaries  of  the  legal  votes  to  which 
the  contestant  and  contestee  are  respectively  entitled  under  the  law 
and  the  evidence. 

With  regard  to  the  illegal  ballots  counted  for  Mr.  Lowe  we  find  that 
1,294  are  proven  by  the  inspectors  or  officers  of  election  at  the  32  pre- 
oincts  where  they  were  cast,  which  are  fully  cited  in  a  table  which  is 
found  on  page  54  of  this  report. 

These  witnesses  were  under  the  laws  of  Alabama  the  custodians  of 
these  ballots,  and  in  most  cases  they  corroborate  their  recollections  by 
counting  the  ballots  in  the  presence  of  the  commissioner,  and  they  then 
take  one  or  more  of  the  ballots  from  the  box  and  put  them  in  evidence 
by  attaching  them  to  their  depositions. 

There  is  some  proof  that  in  addition  to  the  1,294  illegal  ballots  there 
were  also  counted  for  Mr.  Lowe  as  many  as  1,734  illegal  Weaver  and 
Lowe  ballots,  but  as  the  proof  regarding  these  latter  ballots  is  not  as 
satisfactory  as  that  regarding  the  former,  we  conclude  to  only  consider 
the  1,294  proven  by  primary  evidence. 

Kinlock  box. 

The  proof  on  this  box  is  so  positive  and  uncontradicted  that  we  do 
not  think  the  House  will  hesitate  to  deduct  16  votes  from  Mr.  Lowe. 

Unregistered  voters. 

An  examination  of  the  record  shows  that  over  3,000  persons'  names 
are  found  upon  the  poll-lists  in  29  different  precincts,  which  names  are 
not  found  in  the  registration  lists. 

We  also  present  a  table,  marked  Xo.  2,  by  which  we  refer  the  House 
to  direct  and  specific  proof  showing  that  1,027  unregistered  voters 
voted  for  Mr.  Lowe. 

Mr.  Lowe  was  unable  to  and  failed  to  prove  that  a  single  unregistered 
voter  voted  for  Mr.  Wheeler. 

Table  Ko.  2  gives  pages  in  the  record  where  the  evidence  is  found, 
and  also  the  name  of  at  least  one  witness  whose  testimony  is  relied  upon. 

It  is  also  shown  by  Table  No.  1  that  at  the  29  polling  places  mentioned 
in  said  table  2,698  illegal  unregistered  persons  voted. 


*  LOWE    VS.    WHEELER.  X61 

But  to  do  the  contestant  no  injustice  we  deduct  298  from  the  2  698 
uuregistered  voters,  leaving  2,400  persons  who  voted  at  these  29  pre- 
cincts, and  who  were  not  registered. 

At  these  29  polls  Lowe  had  returned  for  him  5,630  and  Wheeler  had 
returned  for  him  2,  625  votes. 

Now,  in  the  absence  of  proof  for  whom  these  illegal  votes  were  cast 
the  law  says  that  one  of  three  rules  must  be  adopted — 

1st,  Either  deduct  all  from  him  who  had  a  majority  at  each  poll. 

2nd.  Or  reject  the  poll. 

3rd.  Or  deduct  the  illegal  votes  pro  rata. 

The  first  rule  would  deduct  2,400  from  the  vote  of  William  M.  Lowe. 

The  second  rule  would  deduct  5,630  from  the  vote  of  William  M*. 
Lowe  and  2,625  from  the  vote  of  Joseph  Wheeler,  leaving  3,005  as  the 
balance  or  total  reduction  of  the  vote  of  William  M.  Lowe. 

By  the  third  or  pro  rata  rule  there  would  be  deducted  from  the  vote 
of  William  M.  Lowe  1,642,  and  from  the  vote  of  Joseph  Wheeler  758, 
leaving  the  balance  or  net  amount  to  be  deducted  from  the  vote  of 
William  M.  Lowe  at  884,  which  is  the  least  possible  deduction  which 
can  be  made  from  the  vote  of  William  M.  Lowe  under  either  of  these 
three  rules. 

To  show  that  the  pro  rata  rule  does  Mr.  Lowe  more  than  justice  we 
cite  the  House  to  Table  No.  2,  which  shows  that  1,027  unregistered  per- 
sons voted  for  him  ;  and  541  of  the  persons  included  in  Table  2  are  the 
same  as  those  included  in  Table  No.  1. 

For  instance,  at  Courtland  box  No.  2  it  is  proved  that  189  unregis- 
tered persons  voted  for  William  M.  Lowe,  and  on  the  pro  rata  rule  he  is 
only  charged  with  111 ;  therefore  we  are  entitled  to  add  78  bad  votes  to 
-the  994  (changed  to  884)  bad  votes  in  Table  No.  1. 

By  adopting  the  same  plan  with  regard  to  other  boxes  we  make  out 
Table  No.  3 : 

Table  No.  3. 

Number  of  unregistered  persons  which  are  included  in  Table  No.  2, 
and  who  are  proven  to  have  voted  for  William  M.  Lowe,  and  who  are 
not  included  in  the  994  (changed  to  884)  persons  referred  to  in  Table 
No.  1. 

Precinct. 

Brickville ■ 18 

Courtland,  No.  2 ^ 78 

Whitesburg 31 

Merifliauville,  No.  2 18 

Carpenter's 3 

Red  Bank 4 

Hawk's  Springs 4 

Bishop's 1 12 

Scottsborough 11 

Davis'  Springs 16 

Mays  ville 55 

Moiilton 16 

Athens 16 

Centre  Star 12 

Cave  Spring 22 

Cluttsville 13 

Meridianville,'No.  1 89 

Hampton's 6 

Mooresville 17 

Slough  Beat 36 

Shoal  Ford 5 

South  Florence 4 

486 
H.  Mis.  35 11 


162  DIGEST  OP  ELECTION  CASES. 

Table  No.  2  includes  several  boxes  which  are  not  included  in  Table 
No.  1,  and  we  find  that  486  unregistered  men  who  are  not  included  in 
Table  No.  1  voted  for  Mr.  Lowe. 

Now,  adding  these  480  votes  in  Table  No.  3  to  the  884  obtained  by  the 
jpro  rata  rule  (see  Table  No.  1),  we  find  that  the  total  number  of  unregis- 
tered votes  which  must  be-deducted  from  the  vote  of  William  M.  Lowe 
amounts  to  1,370. 

We  therefore  conclude  that  according  to  the  proof  in  this  case  there 
should  be  deducted  from  the  vote  of  AVilliara  M.  Lowe  1,370  illegal  un- 
registered votes. 

As  we  have  concluded  that  Courtland  box  No.  2  should  nofbe  counted, 
and  as  189  of  these  unregistered  votes  were  cast  at  that  box,  we  must 
deduct  these  189  illegal  votes  from  the  1,370,  leaving  1,181  unregistered 
votes  exclusive  of  Courtland  box  No.  2. 

But  to  be  still  further  certain,  and  do  the  contestant  full  justice,  we 
make  a  further  arbitrary  reduction  of  81  votes,  and  we  decide  to  deduct 
1,100  illegal  unregistered  votes  from  the  vote  of  William  M.  Lowe. 

Uon-residents. 

The  proof  shows  that  81  non-residents  of  the  State  of  Alabama  voted 
for  Mr.  Lowe,  and  we  think  they  should  be  deducted  from  the  vote  of 
William  M.  Lowe. 

It  is  claimed  by  Mr.  Lowe  that  the  9  votes  which  the  inspectors  at 
Lanier's  deducted  from  Mr.  Wheeler  and  the  2  votes  which  they  de- 
ducted from  him  were  not  corrected  by  the  county  officers.  This  would 
make  a  difference  of  7  votes  against  Mr.  Wheeler. 

The  proof  with  regard  to  this  matter  is  tainted  by  the  fraudulent  ex- 
hibit which  appears  following  the  deposition  of  Lowe  Davis. 

It  is  also  claimed  by  Mr.  Lowe  that  Flint  precinct  was  not  counted  in 
the  returns  of  Morgan  County,  and  that  this  precinct  gave  him  17  ma- 
jority, but  the  proof  regarding  this  matter  is  contradictory,  and  is  tainted 
by  a  forgery  which  the  affidavit  of  the  probate  judge  shows  was  in- 
dorsed upon  it  after  it  went  in  the  hands  of  Mr.  Lowe  or  his  attorneys. 

If  both  these  were  allowed  it  would  make  a  difference  of  24  votes  in 
favor  of  Mr.  Lowe. 

Minors. 

The  proof  shows  that  16  minors  voted  for  Mr.  Lowe,  and  we  think 
that  number  should  be  deducted  from  his  vote. 

Summary  No.  1.    ■ 

Votes  returned  for  Mr.  Wheeler 12,808 

Votes  returned  for  Mr.  Lowe 12, 765 

From  which  deduct  votes  cast  for  Mr.  Lowe  by  persons  who 

were  not  registered .' 1, 100 

Deduct  illegal  ballots  proved  to  have  been  cast  and  counted 

for  Mr.  Lowe 1, 694 

Deduct  non-residents  proven  to  have  voted  for  Mr.  Lowe 70 

Deduct  minors  proven  to  have  voted  for  Mr.  Lowe 10 

Deduct  Kinlock  box,  illegally  returned  for  Mr.  Lowe 16 

Deduct  Courtland  box  No.  2  (Lowe's  majority) 308 

i,  798 

Mr.  Lowe's  legal  vote 9,967      9,967 

Mr.  Wheeler's  majority 2, 841 


WITHERSPOON   VS.    DAVIDSON.  163 

Summary  No.  2. 

Votes  returned  for  Mr.  Wheeler •    ■^^2  808 

Votes  returned  for  Mr.  Lowe "  127(55        ' 

From  wliich  deduct  votes  of  unregistered  i^ersons  by  the  Mc-  '         ' 

Crary  or  j)7'o  rata  rule 884 

Deduct  illegal  ballots  proved  to  have  been  cast  and  counted  for 

Mr.  Lowe 1  294 

Deduct  non-residents  proven  to  have  voted  for  Mr.  Lowe....      '  70 

Deduct  minors  proven  to  have  voted  for  Lowe 10 

Deduct  Kinlock  box,  illegally  returned  for  Mr.  Lowe 16 

Deduct  Courtland  box  No.  2  (Lowe's  majority) 308 

2,582 

Mr.  Lowe's  legal  vote 10,183    10,183 

Mr.  Wheeler's  majority 2  625 

Now,  if  we  deduct  7  votes  from  Mr.  Wheeler  at  Lanier's  and  add  17 
votes  to  Mr.  Lowe  at  Flint,  it  will  make  a  difference  in  Mr.  Lowe's  favor 
of  but  24  votes,  and  if  we  should  give  him  all  he  asks,  counting  for 
him  the  525  votes  which  he  claims  were  rejected,  and  the  votes  he  claims 
to  have  proven  at  Meridianville  and  Lanier's,  Mr.  Wheeler's  majority 
would  still  be  nearly  2,000. 

It  seems  to  us  there  is  no  question  but  that  under  the  rule  adopted 
by  the  majority  of  this  committee  they  should  count  for  Mr.  Wheeler 
the  200  votes  which  the  proof  positively  shows  were  cast  for  him  at 
Courtland  box  No.  2. 

This  would  make  Mr.  Wheeler's  majority  200  greater  than  shown  by 
the  tables. 

We  therefore  recommend  the  adoption  of  the  following  resolutions : 

Resolved,  That  Joseph  Wheeler  is  entitled  to  a  seat  in  this  House  as 
a  Eepresentative  in  the  Forty-seventh  Congress  from  the  eighth  Con- 
gressional district  of  Alabama. 

Resolved,  That  William  M.  Lowe  is  not  entitled  to  a  seat  in  this  House 
as  a  Eepresentative  in  the  Forty-sev^enth  Congress  from  the  eighth  Con- 
gressional district  of  Alabama. 


GEORGE  W.  VTITHERSPOON  vs.  ROBERT  H.  M.  DAVIDSON. 

First  Congressional  District  of  Florida. 

DISMISSED  FOR  WANT  OF  PROSECUTION. 


June  6,  1882. — Mr.  Eanney,  from  the  Committee  on  Elections,  sub- 
mitted the  following — 

'  REPORT: 

The  Committee  on  Elections,  to  loliom  was  referred  the'ease  of  Witherspoon 
Ts.  Davidson,  first  Congressional  district,  Florida,  respectfully  submit 
the  following  report : 

In  this  case  there  was  no  notice  of  contest  or  answer,  and  no  evidence 
taken  legally  which  the  committee  had  before  them.    Contestant  ap- 


164  DIGEST  OF  p:lection  cases. 

peared  and  produced  an  affidavit,  a  copy  of  which  is  appended  to  this 
report,  with  the  counter-affidavit  of  coutestee.  (Exhibits  1  and  2.)  The 
<}ommittee  caused  a  notice  to  be  sent  and  delivered  to  the  counsel  named 
in  contestant's  affidavit,  asking  him  to  produce  the  papers  in  his  hands, 
but  he  has  omitted  and  declined  to  do  so,  he  having  taken  no  notice  of 
the  letter  sent  him,  a  copy  of  which  is  annexed,  save  to  acknowledge 
the  receipt  of  same.     (Exhibits  D,  E,  F.) 

Contestee  exhibited  to  the  committee  the  copies  of  the  notice  of  con- 
test served  upon  him  and  his  answer  thereto,  together  witlf  a  replica- 
tion and  amended  notice,  copies  of  which  are  annexed  (Exhibits  A,  B, 
O),  and  moved  to  dismiss  the  proceedings.  It  was  claimed  and  it  ap- 
pears that  the  notice  of  contest  was  insufficient  and  inadequate.  It  al- 
leges certain  frauds  very  generally,  but  does  not  set  uj)  or  allege  that 
contestant  was  elected.  The  replication  enlarges  the  notice,  however, 
and  obviates  some  if  not  all  of  the  objections. 

The  committee  are  of  the  opinion  that  contestant's  failure  to  prose- 
cute his  contest  arose  from  the  causes  which  he  sets  forth  in  his  affida- 
x^it.  But  they  see  no  way  of  procuring  the  papers,  or  of  investigating 
the  ease  further,  unless  the  House  take  the  matter  in  hand  and  do  it  in 
their  own  way,  either  by  sending  a  special  committee  to  Florida  to  take 
the  evidence  or  otherwise. 

There  is  nothing  which  implicates  contestee  in  any  of  the  wrongful 
proceedings  referred  to. 

The  committee  report  the  facts,  and  recommend  that  the  contestant 
have  leave  to  withdraw  his  contest  without  prejudice. 


Exhibit. 


DnsTtticT  OF  Columbia, 

City  of  Washington: 

Personally  came  and  appeared  before  the  undersigned,  a  notary  public  in  and  for 
the  District  and  city  aforesaid,  George  W.  Witherspoou,  who,  being  first  duly  sworn 
according  to  law,  deposes  and  says  that  he  was  the  candidate  of  the  Republican 
|)arty  at  the  regular  election  held  on  the  2d  day  of  November,  1880,  tor  Representative 
in  Congress  from  the  first  Congressional  district  of  the  State  of  Florida.  That  at 
and  during  the  time  fixed  by  law  for  the  registration  of  the  legal  voters  of  said  State 
and  district  gross  irregularities  and  frauds  were  committed  upon  his  supporters  and 
partisans  by  the  supporters  and  partisans  of  his  opponent,  R.  H.  M.  Davidson,  in  this, 
that  many  supporters  of  Davidson  were  illegally  and  fraudulently  registered,  and 
fjimy  of  the!said  deponent's  supporters  were  illegally  denied  registration.  That  after 
the  registration  books  were  closed  the  supporters  and  partisans  of  his  opponent,  the 
said  Davidson,  erased  and  struck  from  the  registration  books  and  records  unlawfully 
the  names  of  many  of  the  supporters  of  deponent,  and  by  this  means  deprived  them 
of  the  right  to  vote. 

He  further  deposes  and  says  that  gross  frauds  were  committed  at  said  Congres- 
sional election  by  the  supporters  and  partisans  of  his  opponent,  the  said  Davidson,  by 
stuffing  the  ballot-boxes  with  tiasue  ballots,  false  and  fraudulent  countings  of  votes, 
litaTticularly  in  the  counties  of  Jefferson,  Taylor,  Leon,  Jackson,  Escambia,  and  Levy. 

And  that  after  he  was  defrauded  out  of  his  election  by  the  methods  herein  described 
lie  served  notice  of  contest  as  prescribed  by  law  upon  his  oi^poueut,  and  received  an- 
«wer  thereto,  and  made  due  preparation  and  diligence  to  prosecute  his  contest  as  is  by 
the  act  of  Congress  in  such  cases  made  and  provided.  That  he  employed  as  his  at- 
torney T.  W.  Brevard,  esq.,  and  paid  him  $125  as  a  retaining  fee  to  prosecute  his  case 
against  his  opponent,  the  said  Davidson,  and  that  the  said  Brevard  utterly  failed  to 
^o  so,  and  betrayed  him  and  sacrificed  all  his  interests  in  the  contest ;  and  your  depo- 
nent has  reason  to  believe  and  does  believe  that  the  said  Brevard  entered  into  col- 
Husion  with  and  conspired  with  Davidson  for  the  purpose  of  defeating  him,  deponent, 
an  his  contest.  He  took  from  him,  and  declined  and  refused  to  return  to  your  depo- 
nent, his  notice  of  contest,  the  answer  thereto,  and  other  valuable  papers  and  evi- 
dences essential  to  the  successful  prosecution  of  the  case. 

fie  furtter  deposes  and  says  that  his  witnesses  were  intimidated  and  prevented  from 


WITHERSPOON    VS.    DAVIDSON.  165 

appearing  to  testify  in  his  behalf  by  threats  of  violence,  and  of  beinj?  discharged  from 
labor,  and  of  being  ejected  from  rented  lands  and  houses,  and  by  renisals  of  stock  and 
impleuieuts  to  cultivate  and  gather  their  crops,  and  other  threats  of  persecution  and 
proscription,  if  they  should  attempt  to  testify  in  behalf  of  your  deponent. 

lu  proof  of  these  facts  your  deponent  cites  particularly  a  riot  instigated  in  Madi- 
son County  by  the  supporters  and  partisans  of  the  Democratic  party  for  the  pnrpose 
of  intimidating  witnesses,  at  which  riot  one  Patterson  was  killed,  on  account  of  which 
many  arrests  were  made  and  the  parties  cast  into  jail,  which  had  the  eflFect  of  intimi- 
dating a  large  number  of  deponent's  witnesses  to  an  extent  which  made  it  impossible 
to  induce  them  to  testify  in  his  behalf. 

He  further  deposes  and  says  that  in  some  ctises  (that  of  Christie  particularly)  the 
officers  of  the  law  before  whom  appointments  were  made  to  take  testimony,  and 
where  witnesses  had  been  secured  at  great  trouble  and  expense,  the  officer  faile<l  or 
refused  to  attend  and  hear  testimony  taken.  By  these  and  other  methods  only  known 
to  the  lawless  and  mob-ridden  communities  of  the  South  your  deponent  was  defrauded 
out  of  his  election  and  denied  the  right  of  exposing  aud  proving  the  fraud,  under  the 
act  of  Congress  made  and  provided  in  such  cases.  Therefore  he  prays  that  a  com- 
mittee be  appointed  with  authority  to  proceed  to  Congressional  district  aforesaid, 
and  make  a  thorough  investigation  and  report  on  the  conduct  and  result  of  said 
election,  with  the  view  of  ascertaining  and  determining  who  was  lawfully  elected  as 
Representative  in  the  Forty-seventh  Congress  of  the  United  States  from  said  first 
district  of  the  State  of  Florida. 

GEO.  \V.  WITHERSPOON. 

Subscribed  and  sworn  to  before  me  this  13th  day  of  December,  A.  D.  1881. 
[SEAL.]  WM.  T.  S.  CURTIS, 

Notary  Pullic,  District  of  Columbia, 


Exhibit  2. 

Contested-election  case,  first  Congressional  district,  State  of  Florida,  House  of.  Rep- 
resentatives, first  session. 

WiTHERSPOOX 

V8. 

Davidson. 

District  of  Columbia, 

City  of  Washington,  to  wit: 

On  this  day,  before  me,  P"'rank  Gait,  a  notary  public  of  the  District  and  city  afore- 
said, personally  appeared  Robert  H.  M.  Davidson  and  made  oath  that  he  has  read 
the  affidavit  of  George  W.  Witherspoon,  contestant  in  aforesaid  case,  from  the  first 
Congressional  district  of  Florida,  and  dated  the  13th  day  of  December,  1881 ;  that  all 
charges  contained  therein  of  fraud  or  intimidation  of  voters  or  witnesses,  or  that  three 
was  any  cause  of  danger  to  any  person  who  might  testify  in  said  Witherspoon's  be- 
half, affiant  believes  to  be  absolutely  untrue ;  that  the  riot  to  which  said  contestant 
refers  took  place  in  the  other  Congressional  district  in  said  State  of  Florida,  during 
which  riot  the  colored  people  killed  one  white  man,  and  no  colored  man  was  hurt ; 
that  contestee  was  ready  aud  willing,  at  any  and  all  times  and  places,  to  attend  the 
taking  of  depositions,  either  by  himself  or  counsel,  after  due  notice  being  had  ;  but 
that  the  contestant  made  no  eftbrt,  to  affiant's  knowledge,  to  take  any  depositions, 
but  did  take  some  ex  parte  affidavits  without  the  knowledge  of  affiant ;  that  in  se 
far  as  contestant  seeks  to  implicate  contestee  as  being  in  collusion  with  one  of  the 
alleged  attorneys  of  said  contestant  F.  "W.  Brevard,  the  charge  is  absolutely  and  un- 
conditionally false  in  every  shape  and  form  ;  and  that  the  contestee  never  heard  of 
the  loss  of  any  paper,  as  alleged  in  the  aforesaid  affidavit  of  George  W.  Witherspoon, 
of  date  December  13,  1881,  until  said  affidavit  was  read,  in  his  presence  and  hearing, 
before  the  Committee  on  Elections  of  the  House  of  Representatives  some  time  during 
the  current  year,  1882. 

Given  under  my  hand  this  26th  day  of  April,  1882. 

R.  H.  M.  DAVIDSON. 

Sworn  and  subscribed  to  before  me  this  26th  day  of  April,  A.  D.  1882. 
[SEAL.]  FRANK  GAI.T, 

Rotary  Puhlic. 


166  DIGEST  OF  ELECTION  CASES. 

Exhibit  A. 
Notice  of  contest. 


George  W.  Witherspoon 

vs. 
Egbert  H.  M.  Davidson 


:\ 


Sir  :  You  are  hereby  notified  that  I  shall  contest  your  election  as  a  Representative  in 
Congress  from  the  first  Congressional  district  in  the  State  of  Florida,  comprising  the 
counties  of  Escambia,  Santa  Rosa,  Walton,  Holmes,  Washington,  Jackson,  Calhoun, 
Franklin,  Liberty,  Gadsden,  Walkulla,  Leon,  Jefferson,  Taylor,  Lafayette,  Levy, 
Hernando,  Hillsborough,  Manatee,  Polk,  Sumter,  and  Monroe,  for  the  Congressional 
term  for  which  you  claim  to  have  been  elected  from  said  district  at  the  general  elec- 
tion held  in  said  State  and  district  on  the  second  day  of  November,  1880,  for  thp  fol- 
lowing reasons,  to  wit : 

First.  That  the  board  of  county  commissioners  in  the  respective  counties  aforesaid, 
and  in  the  said  district,  on  the  first  Monday  in  October,  1880,  revised  the  registration 
list  in  the  said  district  and  counties  aforesaid,  filed  by  them  in  the  office  ©t  the  clerk 
of  the  circuit  courts  in  said  district  and  counties,  and  erased  therefrom  the  names  of 
Republican  electors  who  were  living,  and  who  had  not  ceased  to  reside  permanently 
in  the  county,  or  who  Avas  otherwise  disqualified  to  vote,  and  on  the  third  Monday 
in  said  month  and  year  the  said  county  commissioners,  in  said  respective  counties, 
refused,  neglected,  and  omitted  to  hear  the  complaints  of  those  who  claimed  that 
their  names  had  been  improperly  erased  from  the  said  registration  lists,  and  pre- 
vented said  voters  from  declaring,  under  oath,  before  the  said  board  of  county  com- 
missioners in  said  counties,  at  any  time  between  said  first  day  of  October,  1880,  and 
the  22nd  day  of  October,  1880,  both  inclusive,  their  qualifications  as  voters  under  the 
laws  of  the  State  of  Florida,  in  such  cases  made  and  provided. 

Second.  That  the  clerk  of  the  circuit  courts  in  the  respective  counties  aforesaid, 
between  the  said  first  Monday  in  October,  1880,  and  the  said  22ud  day  of  October, 
1880,  both  inclusive,  refused,  neglected,  and  omitted  to  replace  the  names  of  the  said 
electors  on  said  list  of  registered  voters  in  the  respective  counties  as  aforesaid,  as  re- 
quired by  the  statutes  of  the  State  of  Florida  in  such  cases  made  and  provided. 

Third.'  That  the  said  clerk  of  the  said  courts,  and  the  deputy  clerks  by  them  ap- 
pointed as  deputy  registration  officers,  refused,  neglected,  and  omitted  to  register  in 
the  election  districts  in  the  aforesaid  district  and  counties  the  names  of  Republican 
electors,  as  required  to  do  by  law,  contrary  to  the  statutes  of  the  State  of  Florida  in 
such  cases  made  and  provided. 

Fourth.  That  on  the  said  first  Monday  of  October,  1880,  the  said  board  of  county 
commissioners  in  the  respective  counties  as  aforesaid  refused,  neglected,  and  omit- 
ted to  appoint  three  intelligent  and  discreet  electors,  resident  in  their  respective  coun- 
ties, who  could  read  and  write,  and  who  represented  both  political  parties,  as  inspect- 
ors of  election  for  the  polling  place  or  precinct  in  each  election  district  in  the  re- 
spective counties  as  aforesaid,  for  which  they  were  appointed,  and  said  respective 
boards  of  county  commissioners  refused,  neglected,  and  omitted  to  publish,  or  post  in 
a  conspicuous  place  in  each  election  district,  twenty  days  before  the  2nd  day  of  No- 
vember, 1880,  the  names  of  the  three  inspectors  appointed  for  the  polling  place  in 
such  election  district,  as  required  by  the  statutes  of  the  State  of  Florida  in  such  cases 
made  and  provided. 

Fifth.  That  the  clerks  of  the  circuit  courts  in  the  respective  counties  as  aforesaid 
refused,  neglected,  and  omitted,  within  three  days  after  the  first  Monday  in  October, 
1880,  to  give  notice  by  publication  or  otherwise,  setting  forth  therein  the  boundary 
lines  of  each  election  district,  and  that  the  electors  in  each  election  district  should 
register  with  the  deputy  clerks  or  registration  officers  therein  named  for  the  election 
district,  and  with  no  other,  as  required  by  the  laws  of  Florida  in  such  cases  made 
•  and  provided. 

Sixth.  That  the  said  clerks  of  the  circuit  courts  in  the  respective  counties  aforesaid 
refused,  neglected,  and  omitted,  five  days  before  the  said  2nd  day  of  November,  1880, 
to  prepare  and  open  for  inspection  in  their  offices  respectively  separated  lists  of  the 
persons  entitled  to  vote  at  the  several  voting  places  or  precincts  in  the  said  counties, 
as  required  to  do  by  the  laws  of  Florida  iu  such  cases  made  and  provided.  • 

Seventh.  That  the  inspectors  of  election  at  the  respective  polling  places  or  pre- 
cincts, in  the  respective  counties  as  aforesaid,  between  the  hours  of  eight  (8)  o'clock 
in  the  forenoon  and  sunset  in  the  evening  on  the  said  second  (2ud)  day  of  November, 
1880,  refused  to  admit  inside  the  said  polling  places  a  representative  of  the  Repub- 
lican party,  who  was  named  by  the  adherents  of  said  party,  at  said  respective  xiolliug 
places  in  said  district  and  counties,  contrary  to  the  statutes  of  the  State  of  Florida 
in  such  cases  made  and  provided. 


WITHEKSPOON   VS.    DAVIDSON.  167 

Eighth.  That  the  said  inspectors  of  election  at  the  respective  polling  places  or  pre- 
cincts in  the  counties  aforesaid  received  ballots  other  than  plain  white  paper,  upon 
which  was  printed  the  names  of  the  candidates  of  the  Democratic  party,  and  placed 
said  ballots  in  the  ballot-boxes,  and  canvassed  and  counted  said  ballots  as  having 
been  lawfully  voted,  contrary  to  the  laws  of  Florida  in  such  cases  matle  and  provided. 

Ninth.  That  the  said  inspectors  of  election  at  the  respective  polling  places  or  pre- 
cincts in  the  respective  counties  aforesaid  refused,  neglected,  and  omitted  to  ad- 
minister the  oath  requisite  under  the  laws  of  Florida  after  challenge  to  Republican 
electors  who  claim  to  be  qualified  voters,  and  refused,  neglected,  and  omitted  to  re- 
ceive the  vote  of  such  electors  who  oifered  to  take  the  oath  in  such  cases  made  and 
provided  by  the  laws  of  Florida. 

Tenth.  That  the  said  inspectors  of  election  in  the  respective  polling  places  or  pre- 
cincts in  the  counties  aforesaid  refused,  neglected,  and  omitted  to  administer  the 
oath  provided  by  law  to  Eepublican  electors  who  claimed  that  they  had  duly  registered 
according  to  law,  but  whose  names  did  not  appear  upon  the  registration  books 
of  the  respective  polling  places  or  precincts  in  said  counties,  and  refused  to  receive 
their  votes,  contrary  to  the  laws  of  Florida  in  such  cases  made  and  provided. 

Eleventh^  That  the  said  inspectors  of  election  in  the  respective  polling  places  or 
precincts  in  the  counties  aforesaid  refused,  neglected,  and  omitted  to  have  nothing 
in  the  respective  ballot-boxes  at  the  opening  of  the  respective  polls,  but  placed  Dem- 
ocratic ballots  therein,  and  then  refused  to  publicly  open  and  expose  the  said  ballot- 
boxes,  contrary  to  the  laws  of  Florida  in  such  cases  made  and  provided. 

Twelfth.  That  at  the  respective  polling  places  in  the  counties  aforesaid.  Republican 
electors  were,  through  the  action  of  Democratic  inspectors,  hindered  and  prevented 
from  voting,  and  Democratic  electors  were  permitted  to  vote  tissue  ballots,  and  bal- 
lots known  as  the  little  jokers,  which  were  canvassed  and  counted  by  said  inspect- 
ors, and  the  result  thereof  returned  to  the  board  of  county  canvassers  as  the  lawful 
result  of  said  election,  contrary  to  the  laws  of  the  State  of  Florida  in  such  cases 
made  and  provided. 

Thirteenth.  That  the  said  inspectors  of  election  in  the  respective  polling  places  or 
precincts  in  the  counties  aforesaid  refused,  neglected,  and  omitted  to  deliver  to  the 
representative  of  the  Republican  party,  after  due  demand  being  made  therefor,  upon 
the  completion  of  the  count,  a  statement  of  the  result  of  the  election,  contrary  to 
the  laws  of  the  State  of  Florida  in  such  cases  made  and  provided. 

That  by  means  of  fraud  and  violations  of  the  election  laws,  together  with  intimi- 
dation and  menace,  the  Republican  electors  of  said  Congressional  district  were  de- 
prived of  and  prevented  from  the  exercise  of  their  suffrages,  and  the  majority  which 
you  now  claim  to  have  received  was  obtained  through  fraud,  intimidation,  and 
menace,  and  through  the  action  of  Democratic  inspectors  of  election,  in  the  respect, 
ive  polling  places  or  precincts  in  the  first  Congressional  district  in  the  State  of  Florida, 
on  the  second  (2d)  day  of  November,  1880,  in  stufling  ballot-boxes  with  Democratic 
ballots,  in  voting,  counting,  and  canvassing  tissue  ballots  and  little-joker  ballots, 
and  in  permitting  Democratic  electors  known  to  them  to  vote  many  ballots  more  than 
one,  and  upon  other  names  than  their  own,  and  by  keeping  Republican  voters  from 
the  polls  through  violence,  and  by  preventing  those  who  were  at  the  polls  from  vot- 
ing, as  herein  set  fcJrth. 

GEORGE  W.  WITHERSPUON, 

Contestant. 

MoKTiCELLO,  Florida, 

November  25, 1880. 


Exhibit  B. 
Ansicer. 


■George  W.  Witherspoon 

vs. 
Robert  H.  M.  Davidson 


-\ 


The  undersigned,  Robert  H.  M.  Davidson,  having  received  fiom  George  W.  Wither- 
«poon  a  notice  that  he  contests  his  election  as  the  Representative  in  Congress  from  the 
first  Congressional  district  of  Florida,  on  the  second  day  of  November,  A.  D.  1880,  to 
the  Fortv-seventh  Congress,  in  answer  thereto  says: 

1.  He  objects  and  excepts  to  the  said  notice,  and  protests  against  the  same  as  vague, 
indefinite,  and  uncertain,  and  insufficient  nnder  the  statute. 

2.  He  further  objects  to  the  same  because  it  does  not  particjalarly  specify  the  grounds 
upon  which  the  said  contestant  relies  in  his  contest. 


168  DIGEST    OF    ELECTION    CASES. 

3.  He  further  objects  because  the  said  contestaut  does  not  allege,  nor  attempt  to 
show  therein,  that  he  was  elected  as  a  Representative  in  Congress  at  the  said  election^ 
nor  that  he  had  a  majority  or  plurality  of  the  votes  cast ;  but  if  anything  is  charged 
it  is  that  no  legal  election  was  held  in  the  said  district,  and  if  not,  the  said  contestant 
has  no  claim  to  the  seat. 

4.  He  further  objects  because  the  contestaut  does  not  put  him  upon  notice  of  any 
particular  place  where  the  irregularities  are  said  to  have  occurred,  nor  does  he  specify 
a  single  county  or  election  precinct  where  he  lost  any  votes  by  the  allteged  irregulari- 
ties. 

5.  He  further  objects  because  the  contestant  does  not  specify  any  counties  or  elec- 
tion precincts  where  the  alleged  fraud,  intimidation,  menace,  &c.,  occurred,  nor  does- 
he  state  where  Republican  electors  were  deprived  of  or  prevented  from  the  exercise 
of  their  suftrage,  nor  at  what  election  precinct  Democratic  inspectors  are  alleged  to- 
have  stuffed  ballot-boxes  with  Democratic  ballots,  to  have  voted,  counted,  and  can- 
vassed tissue  ballots  and  "  little-joker"  ballots,  to  have  permitted  Democratic  electors 
to  vote  more  than  once,  and  upon  other  names,  and  to  have  kept  Republican  voters- 
fifom  the  polls  through  violence,  and  to  have  prevented  those  at  the  polls  from  voting, 

6.  He  further  objects  because  the  contestant  does  not  charge  that  he  suftered  any 
detriment  or  injury  by  the  alleged  irregularities.  • 

Subject  to  the  foregoing  objections  and  exceptions  and  protest,  and  demanding  th& 
full  benefit  thereof  now  and  at  all  times  hereafter  during  these  proceedings,  the  cou- 
testee  answers  the  said  notice,  and  says  in  denial  of  the  several  specifications  : 

1.  The  revisal  of  the  registration  lists  on  the  first  Monday  in  October,  1880,  was 
made  under  the  laws  of  the  State  of  Florida,  in  the  several  counties  of  the  district ; 
and  he  denies  that  on  the  third  Monday  in  said  month  the  county  commissioners  in 
the  said  respective  counties  refused,  neglected,  or  omitted  to  hear  the  complaints  of 
those  who  claimed  that  their  names  had  been  improperly  erased  from  the  said  regis- 
tration lists,  and  he  further  denies  that  the  said  county  commissioners  prevented  said 
voters  from  declaring,  under  oath  before  their  several  boards  in  any  of  said  counties- 
between  the  dates  mentioned,  their  qualifications  as  voters  under  the  laws  of  Florida, 
as  charged. 

2.  He  denies  that  the  clerks  of  the  circuit  courts  in  the  said  counties,  between  th& 
dates  mentioned,  refused,  neglected,  or  omitted  to  replace  the  names  of  any  legal  and 
lawful  electors  on  said  lists  of  registered  voters,  and  if  any  did  so  refuse  it  was  because 
they  had  failed  to  comply  with  the  laws  of  Florida  governing  such  cases. 

3.  He  denies  that  the  said  clerks  and  the  other  registration  officers  refused,  neg- 
lected, or  omitted  to  register  in  the  election  district  in  the  said  counties  the  names  of 
any  legal  or  lawful  electors,  whether  Republican  or  Democrat,  who  made  due  and 
lawful  application  to  be  registered  under  the  laws  of  Florida  governing  such  cases. 

4.  He  denies  that  the  said  boards  of  county  commissioners  on  the  first  day  of  Oc- 
tober, 1880,  refused,  neglected,  or  omitted  to  appoint  three  intelligent  and  discreet 
electors,  resident  in  their  respective  counties,  who  could  read  and  write  and  who 
represented  both  political  parties,  as  inspectors  of  election  at  the  several  precincts 
referred  to,  and  further  denies  that  said  boards  refused,  neglected,  or  omitted  to  pub- 
lish the  names  of  such  inspectors  as  required  by  law.  And  if  there  had  been  any 
such  failure  or  neglect  it  could  not  have  prevented  any  election  or  injured  the  con- 
testant under  the  laws  of  Florida  governing  such  cases. 

5.  He  denies  that  there  was  any  failure  to  publish  the  boundary  lines  of  the  election 
districts  or  the  notice  to  the  electors  of  the  place  for  them  to  register,  as  charged. 

6.  He  denies  that  the  said  clerks  refused  or  neglected  to  prepare  separate  lists  of 
the  electors  in  each  precinct  or  to  open  the  same  for  inspection,  as  charged. 

7.  He  denies  that  the  inspectors  refused  to  admit,  at  the  time  specified,  a  represent- 
ative of  the  Republican  party,  named  by  the  adherents  of  said  party,  inside  the  said 
polling  places,  as  charged. 

8.  He  denies  that  the  inspectors  of  election  at  the  voting  places  or  precincts  in  said 
counties  received  unlawful  Democratic  ballots,  as  charged,  or  counted  or  canvassed 
any  such  unlawful  ballots. 

9.  He  denies  that  there  was  any  refusal,  neglect,  or  omission  on  the  part  of  such  in- 
spectors of  election  to  administer  any  lawful  oath  to  any  one  challenged,  who  wa» 
entitled  to  or  who  demanded  to  take  the  same,  under  the  laws  of  Florida  governing 
such  cases. 

10.  He  denies  that  there  was  any  refusal,  neglect,  or  omission  on  the  part  of  said  in- 
spectors of  election  at  the  said  polling  places  to  administer  any  lawful  oath  to  any 
elector.  Republican  or  Democrat,  who  claimed  that  he  had  duly  registered,  but  whose 
name  did  not  appear  upon  the  registration  books.  He  further  denies  that  there  was- 
any  unlawful  refusal  to  receive  the  votes  of  persons  who  claimed  that  they  had  a  right 
to  vote,  but  whose  names  did  not  appear  upon  such  lists.  On  the  contrary,  h& 
alleges  that  all  duly  qualified  voters  who  were  registered  according  to  law  were  al- 
lowed to  vote  by  said  inspectors  of  election. 

11.  He  denies  that  there  was  any  refusal,  neglect,  or  omission  "  to  have  nothing  iu 


WITHERSPOON   VS.    DAVIDSON.  16^ 

the  respective  ballot-boxes  at  the  opening  of  the  i-espective  polls,"  and  further  denies 
that  they  ])laced  Deinocriitic  ballots  therein,  or  that  they  refused  to  open  and  exhibit 
such  ballot-boxes  iu  public  as  required  by  law. 

12.  He  denies  that  at  such  polling  places  the  Democratic  inspectors  hindered  or  pre- 
vented any  one  from  voting  who  was  lawfully  entitled  to  vote,  and  denies  that  they 
unlawfully  permitted  Democratic  electors  to  vote  tissue  ballots  and  ballots  known  a» 
"little  jokers,"  whatever  they  may  be.  He  further  denies  that  any  such  votes  were 
unlawfully  or  improperly  canvassed  or  counted  by  such  inspectors  or  that  any  unlaw- 
ful or  improper  return  of  any  such  votes  was  made,  contrary  to  the  laws  of  Florida  in 
such  cases  provided. 

13.  He  denies  that  there  was  any  refusal,  failure,  or  omission  upon  the  part  of  such 
inspectors  of  election  to  deliver  to  the  representatives  of  the  Republican  party  at  the 
several  voting  places  in  the  district  a  statement  of  the  result  of  the  election  after  due 
demand  therefor.  And  if  there  was  any  such  refusal  the  contestant  did  not  suffer  any 
injury  or  lose  any  votes  thereby. 

14.  He  denies  that  any  Republican  electors  of  said  Congressional  district  were  de- 
prived of  or  prevented  from  the  exercise  of  their  suffrages  by  means  of  fraud  or  viola- 
tions of  the  election  law  or  by  intimidation  or  menace.  He  further  denies  that  hi» 
juajority  was  obtained  through  fraud,  intimidation,  or  menace,  or  through  any  action 
of  Democratic  inspectors  at  such  election  in  stuflSng  ballot-boxes  with  Democratic 
ballots,  in  unlawfully  voting,  counting,  or  canvassing  tissue  ballots  or  little-joker  bal- 
lots. He  further  denies  that  such  majority  was  obtained  by  the  action  of  the  said  in- 
spectors in  permitting  Democratic  electors  to  vote  many  ballots  or  upon  other  uame& 
than  their  own,  or  by  keeping  Republican  voters  from  the  polls  through  violence,  or 
by  preventing  these  who  were  at  the  polls  from  voting,  as  charged. 

15.  He  further  denies  generally,  as  he  has  already  done  or  attempted  to  do  specific- 
ally, all  allegations  of  irregularity,  violation  of  law,  fraud,  intimidation,  or  menace 
against  any  Democratic  officer  or  elector  at  any  of  election  precincts  or  voting  places 
in  any  of  the  counties  in  the  said  Congressional  district  at  the  said  election,  or  pre- 
vious thereto,  as  made  by  the  contestant  in  his  notice  of  contest,  and  denies  all  the 
statements  in  the  several  paragraphs  of  the  said  notice  made  to  invalidate  his  elec- 
tion or  traduce  the  number  of  votes  received  by  him  as  Representative  in  Congress 
for  said  district  at  such  election;  and  the  coutestee,  having  denied  the  facts  alleged  Id 
the  contestant's  notice,  sets  forth  the  following  other  grounds  upon  which  he  rests  the 
validity  of  his  election. 

16.  That  he  received  a  majority  of  the  legal  votes  cast  at  the  said  election  for  such 
Representative  in  the  Forty-seventh  Congress  ;  that  the  official  canvass  of  the  said 
election,  as  made  by  the  State  canvassing  board,  and  published  according  to  law, 

showed  that  he  received votes  and  the  contestant votes,  and  this  result  was 

reached  by  a  public  canvass  without  objection  or  protest  on  the  part  of  contestant. 

17.  That  at  the  several  voting  precincts  in  the  county  of  Escambia  there  was  intimi- 
dation upon  the  part  of  the  Republican  party  through  its  adherents,  used  and  employed 
to  force  and  compel  colored  citizens  who  were  qualified  electors  to  vote  the  Repub- 
lican ticket,  and  for  the  contestant,  and  the  vote  of  the  contestant/ was  largely  in- 
creased in  consequence  thereof,  to  the  amount  of  100  votes  or  more. 

18.  That  in  Gadsden  County,  at  the  several  precincts  thereof,  there  was  a  similar 
conduct  on  the  part  of  the  Republican  party  and  its  adherents,  as  charged  in  para- 
graph 17,  and  by  such  intimidation  the  contestant's  vote  was  largely  increased,  to  the 
amount  of  two  hundred  votes  or  more. 

19.  That  in  Wakulla  County,  at  the  several  precincts  thereof,  there  was  similar  con- 
duct on  the  part  of  the  Republican  party  and  its  adherents,  as  charged  in  paragraph 
17,  and  by  such  intimidation  the  contestant's  vote  was  increased  to  the  amount  of 
twenty-five  votes  or  more. 

20.  That  in  Leon  County,  at  the  several  precincts  thereof,  there  was  similar  con- 
duct on  the  part  of  the  Republican  party  and  its  adherents,  as  charged  in  paragraph 
17,  and  by  such  intimidation  the  contestant's  vote  was  increased  to  the  anaount  of  one 
hundred  votes.  And  in  such  countv  the  contestant's  vote  was  further  increased  to 
the  amount  of  two  hundred  and  fifty  votes  by  the  votes  of  boys  under  the  age  of 
twenty-one  vears,  persons  convicted  of  felony  and  larceny,  non-residents,  and  other 
disqualified  persons,  and  bv  tte  votes  of  persons  who  were  not  duly  registered,  and  of 
others  who  voted  more  than  once,  all  of  which  said  illegal  or  fraudulent  votes  were 

Oflfl^  TOT*  tilO   OOnt^fit Jlllti 

21.  That  at  precinct  No.  2,  in  Leon  County,  in  said  district,  known  sometimes  a» 
Dawkiu's  Pond,  a  mistake  was  made  by  the  precinct  canvassers  while  making  the 
canvass,  or  transcribing  the  result  thereof,  by  which  (127)  one  hundred  and  twenty- 
seven  votes  cast  for  the  coutestee  were  entered  upon  the  return  as  having  been  cast 
for  one  Livingston  W.  Bethel,  who  was  not  a  candidate  for  such  Representative  in  the 
Fortv-seventh  Congress,  and  the  said  mistake  entered  into  the  result,  and  the  county  can- 
vassers, and  afterwards  the  State  canvassing  board,  carried  the  said  mistake  into  the 
official  canvass,  and  the  votes  so  returned  for  the  said  Bethel  should  be  added  to  tne 


170  DIGEST    OF   ELECTION    CASES. 

•contestee's  vote,  and  his  vote  aud  majority  should  be  increased  one  hundred  and 
twenty-seven  votes  by  the  correction  of  said  mistake. 

22.  That  in  Levy  County,  at  the  several  iirecincts  thereof,  there  was  similar  conduct 
on  the  part  of  the  Republican  party  and  its  adherents,  as  charged  in  paragraph  17,  and 
by  such  intimidation  the  contestant's  vote  was  increased  to  the  amount  of  seventy-five 
votes. 

23.  That  a  system  of  intimidation  was  carried  on  by  the  supporters  of  the  contest- 
ant in  Jefferson  County,  in  said  district,  at  said  election  ;  that  voters*Vere  threatened, 
and  beaten,  and  abused  because  of  their  opposition  to  the  contestant,  and  to  compel 
them  to  vote  for  him  as  such  Representative  in  the  Forty-seventh  Congress ;  that  in 
violation  of  law  the  secrecy  of  the  ballot  was  destroyed  by  the  use  of  a  transparent 
ballot,  and  an  espionage  placed  over  the  voters  as  they  were  at  the  polls ;  that  in  some 
•cases  the  colored  people  were  compelled  by  the  contestant's  supporters  to  vote  an  open 
ticket  in  violation  of  law  ;  that  in  Monticello  a  combination  of  the  contestant's  sup- 
porters exerted  a  system  of  intimidation  upon  the  colored  voters  to  compel  them, 
whether  willingly  or  not,  to  vote  for  the  contestant,  and  this  combination  had  its 
headquarters  at  the  contestant's  own  residence ;  that  at  Waukeenah,  Macedonia,  and 
in  fact  at  every  precinct  in  the  county  a  similar  combination  existed,  and  the  con- 
testant's vote  was  unlawfully  increased  thereby  three  hundred  votes  or  more.         • 

24.  That  in  the  said  county  of  Jefferson  a  large  number  of  persons  at  the  several 
precincts,  and  at  each  and  every  of  them,  amounting  to  one  hundred  or  more  in  all, 
voted  for  contestant  who  had  no  right  under  the  laws  of  Florida  to  vote  at  the  said 
election.  These  illegal  voters  were  made  up  of  non-registered  persons,  persons  con- 
victed of  larceny  and  felony,  persons  illegally  registered,  minors,  and  other  jiersons 
■disqualified  to  vote  under  the  laws  of  Florida,  and  their  votes  should  be  excluded 
from  the  result. 

25.  That  at  the  said  election  at  the  several  voting  places  and  precincts  in  the  several 
counties  in  the  said  district  large  numbers  of  fraudulent  and  illegal  votes  were  cast 
for  the  contestant  which  should  be  excluded  from  the  result.  Marked  and  transparent 
ballots  were  illegally  voted,  and  open  ballots  were  illegally  voted  under  a  system  of 
intimidation  and  espionage  to  compel  colored  people  to  vote  for  the  contestant  against 
their  wishes,  all  of  which  should  be  excluded  from  the  result.  Other  means  of  intimi- 
dation and  espionage  were  used ;  threats,  menaces,  and  violence  were  employed  to 
compel  electors  to  vote  for  the  contestant  against  their  will,  and  the  contestant's  vote 
was  largely  increased  by  these  and  other  unlawful  means  and  influences. 


Exhibit  C. 
EeplicatioH  and  amended  notice. 

CrEORGE  W.  WlTHERSPOON  ) 

V8.  > 

Robert  H.  M.  Davidson.  ) 

Contested  election,  Ist  Florida  district. 

The  contestant  having  seen  and  read  the  contestee's  answer,  and  saving  and  reserving 
unto  himself  now  and  at  all  times  hereafter  any  and  all  manner  of  exception  or  ex- 
■ceptions  to  the  many  untruths,  imperfections,  uncertainties,  and  insufficiencies  thereof, 
-and  replying  unto  so  much  thereof  as  he  is  informed  and  believes  that  he  is  called 
upon  to  reply  to,  by  way  of  amendment  to  his  former  notice  of  contest  heretofore  filed 
in  this  cause,  the  service  whereof  has  been  acknowledged  by  the  contestee,  and,  re- 
plying, he  says : 

First.  That  he  was  the  candidate  of  the  Republican  party  iu  the  first  Congressional 
district  of  Florida  for  the  office  of  Representative  in  Congress  to  the  Forty -seventh 
Congress  of  the  United  States  of  America,  aud  duly  voted  for  by  the  competent  elect- 
ors of  said  district  on  the  second  day  of  November,  A.  D.  1880. 

Second.  That  all  and  singular  the  charges  or  charge  of  fraud  or  frauds  made  against 
Democratic  election  officers,  inspectors,  and  so  forth,  he,  the  contestant,  as  such  Re- 
publican candidate,  was  injured  thereby,  making  a  result  different  to  that  which  would 
have  resulted  from  a  fair  election  in  said  district.  All  of  which  charges  have  been 
specified  to  the  contestee  heretofore,  and  which  the  contestant  now  repeats. 

Third.  The  contestant  denies  that  the  contestee's  majority  was  decreased  iu  any 
county  of  said  district  by  reason  of  Republican  intimidation  or  fraud,  as  charged  in 
the  contestee's  answer;  but  avers  that  if  anything  at  all  occurred  in  this  connection, 
it  was  the  increase  of  the  contestee's  majority  by  Democratic  frauds,  violence,  and  in- 
timidation, which  frauds,  violence,  and  intimidation  resulted  to  the  injury  of  the  con- 


WITHEESPOOX    VS.    DAVIDSON.  171 

testMit  to  tlie  amount  of  more  than  four  thousand  and  five  hundred  votes  in  the  said 
district. 

Fourth.  The  contestant  further  denies  that  the  contestee  was  in  any  manner  dam- 
aged or  injured  by  the  reasons  or  causes  set  up  in  the  said  contestee's  answer. 

Fifth.  The  contestant,  further  replying,  says  that  as  to  the  county  of  Escambia  the 
contestee  was  not  injured  or  damaged  by  the  action  of  any  Republican,  but,  upon  the 
contrary,  the  contestant  by  and  tlirough  the  action  of  Democratic  election  officers  of 
election  was  defrauded  and  swindled  out  of  more  than  five  hundred  votes,  to  his  great 
injury  and  damage. 

Sixth.  That  in  the  county  of  Jackson  this  contestant,  as  such  Republican  candidat«, 
was  defrauded  and  swindled  out  of  more  than  one  thousand  votes  by  Democratic  offi- 
cers of  election  by  means  of  intimidation,  refusal  to  register,  and  registering  Repub- 
lican electors  in  precincts  other  than  those  in  which  they  lived,  to  the  great  injury  and 
damage  of  the  contestant. 

Eighth.  That  iu  the  county  of  Gadsden  the  contestant,  as  such  Republican  candidate, 
was  robbed,  defrauded,  and  swindled  out  of  more  than  eight  hundred  votes  by  means 
of  Democratic  frauds,  violence,  intimidations,  and  disregard  for  the  sanctity  of  the 
law. 

Ninth.  That  in  the  county  of  Leon  this  contestant,  as  such  Republican  candidate, 
was  defrauded  and  swindled  out  of  more  than  seven  hundred  votes  through  the  action 
of  Democratic  officers  of  election  in  refusing  registration,  using  tissue  ballots,  little 
jokers,  and  so  forth,  to  the  great  injury  and  damage  of  the  contestant. 

Tenth.  That  in  the  county  of  Jetterson  this  contestant  was  defrauded  and  swindled 
out  of  more  than  fifteen  hundred  votes  through  the  action  of  Democratic  officers  of 
election  in  refusing  Republican  electors  the  right  to  register,  in  using  tissue  ballots, 
little-joker  ballots,  and  by  other  and  various  corrupt  means  and  devices,  to  the  great 
injury  and  damage  of  this  contestant  as  such  Republican  candidate. 

Eleventh.  That  in  the  county  of  Levy  this  contestant,  as  such  Republican  candi- 
date, was  defrauded  of  more  than  one  hundred  votes  through  the  action  of  Democratic 
officers  of  elections  in  refusing  registration,  using  tissue  ballots,  and  indiscriminately 
challenging  Republicans  who  were  entitled  to  vote,  to  the  great  iiyary  and  damage 
of  this  contestant. 

Twelfth.  That  in  the  counties  of  Taylor  and  Lafayette  this  contestant  was  de- 
frauded and  swindled  out  of  more  than  two  hundred  votes  by  and  through  the  action 
of  Democratic  officers  of  election  in  refusing  registration,  using  tissue  ballots,  little- 
joker  ballots,  intimidations,  and  other  and  various  corrupt  means  and  devices,  to  the 
great  injury  and  damage  of  this  contestant. 

Thirteenth.  That  in  the  county  of  Monroe  this  contestant,  as  such  Republican  can- 
didate, was  defrauded  out  of  more  than  two  hundred  votes  through  the  action  of 
Democratic  officers  of  election  in  refusing  registration,  using  tissue  ballots,  little 
jokers,  and  challenging  and  delaying  Republicans  without  cause,  to  the  great  injury 
and  damage  of  this  contestant. 

That  true  it  is  the  contestee  says  that  no  frauds  or  violence  or  intimidations  were 
used,  yet  this  contestant  avers  the  fact  to  be  that  such  were  used  in  a  reckless  man- 
ner, and  with  no  other  view  than  to  defeat  the  election  of  this  contestant,  which  would 
have  been  the  result  had  a  free  expression  of  the  will  of  the  people  of  the  district  been 
allowed;  and  the  contestant  having  answered  aU  and  singular  the  objections  of  the 
contestee,  he  puts  himself  upon  the  country. 

T.  W.  BREVARD, 
J.  D.  THOMPSON, 

Att'yafor  Contestant. 

The  contestant  will  please  take  notice  that  we  shall  proceed  to  take  testimony  oa 
Saturday,  March  5th,  1881,  at  10  o'clock  a.  m. 

■"  '  .  _  T.  W.  BREVARD. 

J.  D.  THOMPSON. 


172  DIGEST    OF,  ELECTION    CASES. 


HORATJO  BISBEE,  JR.,  vs.  JESSE  J.  FIXLEY. 

Second  Congressional  District  of  Florida. 

s 
Contestant  charges  that  many  electors  duly  offered  to  vote  for  him  and  their  votes  were 

illegally  rejected;  that  votes  were  cast  for  contestee  by  persons  of  foreign  birth 
which  should  be  rejected;  that  fraud  and  "  ballot-box  stuffing  "  were  practiced  at 
and  false  returns  were  made  from  certain  polls ;  that  the  election  in  Brevard 
County  was  held  without  any  registration  in  conformity  to  law  ;  that  the  result  of 
the  election  at  a  certain  poll  was  affected  by  the  use  of  intoxicating  liquors,  force, 
violence,  and  disorderly  conduct  on  the  part  of  the  political  friends  of  the  con- 
testee; and  that  what  purports  to  be  a  return  from  Fort  Christmas  poll  is  not 
signed  by  the  officers  of  election,  and  should  be  rejected. 

Contestee  alleges  that  some  of  the  persons  who  voted  for  contestant  were  disfranchised 
by  conviction  of  crime;  and  he  objects  to  a  portion  of  the  testimony  of  contest- 
ant as  being  taken  after  the  expiration  of  the  first  forty  days  allowed  by  statute,  and 
that  some  of  the  rebuttal  testimony  was  not  strictly  in  rebuttal. 

Held,  That  a  vote  offered  by  an  elector,  and  illegally  rejected,  should  be  counted  as  if 
cast,  it  being  shown  by  the  affidavit  of  such  elector  that  he  offered  to  vote  and 
for  whom. 

That  all  votes  cast  by  persons  of  foreign  birth  who  failed  to  produce  their  naturali- 
zation papers,  or  papers  declaring  their  intentions  to  become  citizens,  as  required 
by  the  constitution  of  Florida,  are  illegal  and  void,  and  must  be  deducted  from 
the  count. 

Where  the  evidence  shows  a  return  to  be  false  and  not  a  true  statement  of  the  votes 
cast,  such  return  is  impeached  and  destroyed  as  evidence,  and  the  true  vote  may 
be  proven  by  calling  the  electors  whose  names  are  on  the  poll-lists  as  voting  at 
such  poll;  and  no  votes  not  otherwise  proven  should  be  counted. 

Where,  as  in  this  State,  the  constitution  provides  "  that  no  person  not  duly  regis- 
tered according  to  law  shall  be  allowed  to  vote,"  an  election  is  held  in  any  county 
without  registration,  the  entire  foundation  for  a  legal  election  was  wanting,  and 
such  election  must  be  set  aside  and  the  returns  be  rejected. 

Where  it  clearly  appears  that  the  fairness,  purity,  or  freedom  of  an  election  at  any 
poll  has  been  materially  interfered  with  by  acts  of  violence,  intimidation,  &c., 
the  election  should  be  set  aside. 

An  unsigned  paper  purporting  to  be  a  return  is  void,  and  no  votes  stated  thei'eiu  can 
be  counted. 

The  provisions  of  the  statute  in  reference  to  the  taking  of  testimony  in  these  cases 
are  directory,  constituting  only  convenient  rules  of  practice;  and  the  House  is 
at  liberty,  in  its  discretion,  to  determine  that  the  ends  of  justice  require  a  different 
course. 


April  17, 1882. — Mr.  Eanney,  from  the  Committee  on  Elections,  sub- 
mitted the  following 


REPORT: 


The  Committee  on  Elections^  to  whom  was  referred  the  contested-election 
case  of  Horatio  Bishee,  jr.,  vs.  Jesse  J.  Finley,  from  the  second  Con- 
gressional district  of  Florida,  having  had  the  same  under  consideration ^ 
beg  leave  to  submit  the  following  report : 

The  testimony  in  this  case  is  voluminous,  making  a  record  of  1,227 


BISBEE,    JR.,    VS.    FINLEY.  173 

pages,  exclusive  of  the  briefs  and  arguments  of  the  respective  parties 
and  their  attorneys. 

Under  the  laws  of  Florida  the  governor  of  the  State  appoints  five 
county  comissioners  for  each  county,  and  the  latter  appoint  three 
officers  of  election  at  each  polling  place.  These  officers  elect  their  clerk 
and  the  board  of  election  officers  thus  constituted  hold  the  election  and 
certify  the  result  thereof  to  the  county  judge  and  clerk  of  the  circuit 
court,  who  are  also  appointed  by  the  governor.  The  county  judge  and 
clerk  of  the  circuit  court,  with  the  assistance  of  a  justice  of  the  peace 
constitute  a  board  of  county  canvassers,  who  canvass  the  returns  of  the 
election  officers  from  the  several  polling  places  in  the  county  and  certify 
the  result  to  the  secretary  of  state  and  governor.  The  "secretary  of 
state,  attorney- general  of  the  State,  and  comptroller  of  State  constitute 
a  board  of  State  canvassers,  who  canvass  the  county  returns  and  certify 
the  result  thereof.  It  is  not  disputed  that  the  entire  machinery  of  the 
election  was  in  the  hands  of  the  political  friends  of  the  sitting  member. 
It  is  true  the  statute  of  the  State  provides  that  the  county  commis- 
sioners shall  appoint  the  officers  of  election,  so  that,  "  if  possible," 
they  shall  represent  two  political  parties,  but  the  (evidence  discloses 
that  this  provision  of  the  statute  was  frequently  disregarded,  and  at 
some  polls  contestant  had  no  political  friend  upon  the  board  of  election 
officers.  It  is  not  deemed  necessary  to  set  forth  the  allegations  of  con- 
testant in  his  notice  of  contest,  nor  those  in  the  answer  of  contestee, 
but  the  substance  of  them  will  be  stated  on  each  branch  of  the  case. 
The  contestant  avers  and  claims  that  many  electors  duly  offered  to  vote 
for  him,  and  their  votes  were  illegally  rejected,  and  insists  that  all  such 
votes  so  tendered  and  refused  shall  be  counted  as  if  cast. 

As  a  question  of  law  we  do  not  understand  it  to  be  controverted  that 
a  vote  offered  by  an  elector  and  illegally  rejected  should  be  counted 
as  if  cast.  It  was  so  held  in  the  case  of  Niblack  vs.  Walls,  Smith's  Re- 
ports, page  104,  reported  by  McCrary,  who  was  then  chairman  of  the 
Committee  on  Elections ;  again,  in  Bell  vs.  Snyder,  Smith's  Eeports,  251, 
252,  and  in  IMartin  vs.  Yates,  Forty-sixth  Congress.  McCrary,  in  his 
work  on  contested  elections,  regards  it  as  a  settled  principle  (section 
423),  and  your  committee  have  so  regarded  it  in  this  controversy. 

In  the  appendix  to  this  report.  Exhibit  A,  will  be  found  the  name  of 
every  voter  whose  vote  was  tendered  for  contestant  and  rejected  which 
we  have  allowed  and  counted  for  him,  except  a  few  votes  in  Madison 
County.  This  exhibit  gives  not  oidy  the  name  of  the  voter,  but  the 
page  of  the  record  where  the  testimony  will  be  found  establishing  his 
right  to  vote  and  that  his  vote  was  tendered  and  rejected. 

In  the  county  of  Marion,  in  which  a  large  number  of  electors  were 
deprived  of  the  right  to  vote  without  any  fault  or  neglect  on  their  part, 
the  electors  in  many  instances,  after  being  denied  the  right  to  vote,  went 
before  a  United  States  commissioner  and  made  an  affidavit  to  the  fact 
of  their  qualifications  as  electors  and  of  their  offering  to  vote,  to  which 
they  attached  the  identical  ballot  which  they  tendered  to  the  election 
officers.  The  figures  in  the  column  of  Exhibit  A  headed  affidavit  refer 
to  the  pages  of  the  record  containing  such  affidavits.  In  the  case  of 
Bell  vs.  Snyder,  Smith's  Reports,  pages  251,  252,  such  affidavits  were 
considered  sufficient  evideoce  of  the  voters'  intention  to  vote  for  the 
officers  whose  names  were  on  the  ballot  attached  to  the  affidavit,  and 
on  such  evidence  their  votes  were  counted. 

But  contestant  has  not  only  put  in  evidence  the  affidavit  of  the  voters 
with  their  ballots  attached,  but  has  in  most  instances  taken  the  testi- 
mony of  the  voter  whose  vote  was  refused,  and  where  the  voter  is  not 


174  DIGEST    OF,  ELECTION   CASES. 

called  as  a  witness  it  is  shown  by  the  testimony  of  other  witnesses,  offi- 
cers of  the  election  and  other  persons  at  the  polls,  that  his  vote  was 
tendered  and  refused. 

Your  committee  find  from  the  evidence  that  there  should  be  added  to 
contestant's  vote  268  votes  on  the  ground  that  they  were  tendered  for 
him  and  illegally  rejected,  and  should  now  be  counted.  It  is  urged  by 
contestee  that  the  votes  of  some  of  the  persons  named  (Exhibit  A)  had 
been  disfranchised  by  conviction  of  crime. 

It  appears  to  have  been  a  rule  with  the  election  officers,  not  only  in 
this  but  in  other  counties,  to  refuse  to  receive  the  vote  of  any  person 
whose  name  was  on  a  list — called  by  some  of  the  witnesses  a  convicts^ 
list — which  had  been  ijrepared  by  the  political  associates  of  contestee 
and  placed  in  the  hands  of  the  officer  of  election.  It  further  appears 
that  the  votes  of  such  persons  on  the  said  list  were  refused,  without 
evidence  of  identity,  and  without  the  production  of  any  record  of  con- 
viction, at  the  polls. 

We  have  excluded  from  our  count  the  votes  of  all  persons  where  the 
evidence  is  satisfactory  that  the  person  alleged  to  have  been  convicted 
is  the  same  person  whose  vote  was  offered  and  refused,  though  the 
record  of  conviction  is  not  in  evidence,  and  to  designate  them  have 
placed  the  letter  C  opposite  their  names  on  said  exhibit. 

We  do  not  mean  to  be  understood,  however,  as  holding  that  the  record 
of  conviction  in  such  cases  should  not  be  produced  as  the  proper  evi- 
dence of  disqualification.  The  question  is  an  immaterial  one  in  this 
case. 

It  is  urged  on  the  part  of  contestant  that  the  officers  of  the  election 
at  the  polls  of  Mellonville,  Orange  County,  and  Live  Oak,  Suwauee 
County,  connived  at  and  were  parties  to  a  premeditated  plan  formed  to 
suppress  the  full  Eepublican  vote,  and  for  this  reason  the  returns  should 
be  rejected.  While  it  is  true  that  the  evidence  may  warrant  the  rejec- 
tion of  the  returns  at  these  polls,  yet  the  committee  have  preferred  to 
retain  the  returns  in  all  cases  where  it  could  be  done  without  doing 
violence  to  the  settled  principles  of  law,  and  to  correct  the  returns  by 
adding  votes  illegally  rejected,  and  deduct  those  illegally  cast,  where 
there  is  evidence  by  which  such  correction  can  be  made  with  reasonable 
certainty.  We  have  therefore  counted  for  contestant  the  votes  tendered 
and  refused,  instead  of  rejecting  the  returns  of  these  two  polls. 

Your  committee  also  deduct  twenty-one  votes  from  contestee's  vote 
on  the  ground  that  they  were  cast  by  persons  not  possessing  the  quali- 
fications of  voters.  Their  names  and  page  of  record  containing  the  tes- 
timony relied  on  are  given  in  Exhibit  C  of  appendix,  hereto  attached. 

FOREIGN-BORN  ELECTORS. 

Contestant  in  his  notice  of  contest  alleges  that  certain  votes  were 
cast  for  contestee  by  persons  of  foreign  birth,  and  claims  their  rejection 
on  the  ground  of  their  failure  to  produce  before  the  officers  of  the  elec- 
tion their  naturalization  papers  or  their  declaration  of  intention  to  be- 
come citizens,  as  the  constitution  and  the  laws  of  Florida  require. 
The  constitution  of  Florida  reads  as  follows  on  tliis  point: 
Section  3,  article  14  of  the  constitution  of  Florida  reads  as  follows : 

At  an  election  at  whi6h  a  citizen  or  subject  of  any  foreign  country  shall  offer  to  vote, 
under  the  provisions  of  this  constitution,  he  shall  present  to  the  persons  laivfuUy  author- 
ized to  conduct  and  supervise  such  election  a  duly  sealed  and  certified  copy  of  his  decla- 
ration of  intention,  otherwise  he  shallnot  he  allowed  to  vote;  and  any  naturalized  citizen 
offering  to  vote  shall  produce  before  said  persons  lawfully  authorized  to  conduct  and 
supervise  the  election  the  certificate  of  naturalization,  or  a  duly  sealed  and  certified 
copy  thereof,  otherwise  he  shall  not  be  allowed  to  vote. 


BISBEE,    JE.,    VS.    FINLEY.  175 

It  will  thus  be  observed  that  the  constitution  of  Florida  command9 
each  and  every  voter  of  this  class  to  perform  a  certain  act,  ^^  other icise  He 
shall  not  be  alloiced  to  vote, ''^  and  this'act  peremptorily  enjoined  is  the 
production  of  the  evidence  by  the  individual  of  his  right  to  vote. 

It  is  a  fundamental  principle  as  firmly  established  as  any  rule  of  law 
that  votes  must  be  cast  as  the  law  directs,  and  if  the  law  requires  the 
voter  to  produce  certain  specified  evidence  of  that  right  before  he  can 
cast  his  vote,  and  he  fails  to  produce  that  evidence,  such  vote,  if  cast,. 
is  illegal  and  void. 

Questions  identical  with  this  in  principle  have  been  frequently  decided 
by  the  House  of  Representatives  and  by  the  judicial  tribunals  of  the 
country,  some  of  which  are  here  cited. 

In  Pennsylvania  persons  not  assessed  were  required  to  answer  certain 
questions  under  oath,  as  to  age,  residence,  &c.,  and  to  prove  their  resi- 
dence by  the  affidavit  of  a  qualified  voter,  as  the  prerequisite  evidence 
of  their  right  to  vote.  It  has  been  repeatedly  decided  by  the  courts  of 
that  State,  as  well  as  by  the  House  of  Eepresentatives,  that  votes  cast 
without  the  production  of  such  evidence  as  the  law  requires  are  pre- 
sumed  to  he  illegal  votes.  (Maner  vs.  Cassidy,  1  Brewster  R.,  p.  2  ^ 
Myers  vs.  Moflett,  2  id.,  p.  230 ;  Weaver  vs.  Given,  1  id.,  p.  141 ;  Shep- 
perd  vs.  Gibbons,  2  id.,  p.  117-129 ;  Brightley's  Law  Cases,  pp.  558,  572,. 
492,  493,  notes ;  Myers  vs.  Moffett,  2  Bartlett  R.,  pp.  564-567  ;  Covode 
vs.  Foster,  id.,  600,  637,  608.) 

In  the  case  of  State  vs.  Hilmontel,  21  Wis.  R.  (574  to  578),  a  question 
identical  in  principle  with  the  one  now  under  discussion  was  ably  and 
elaborately  considered.  The  statute  of  Wisconsin  provided  that  wo 
person  whose  name  was  not  upon  the  registration  list  should  vote  un- 
less he  produced  his  own  affidavit  and  that  of  a  householder  stating  his 
residence  and  qualifications  as  a  voter. 

The  court  unanimously  held,  after  a  second  argument  by  able  lawyers^ 
that  a  vote  cast  by  a  person  not  registered,  without  furnishing  the  affi- 
davits required  by  the  statutes,  was  illegal  and  void,  and  that  in  a  contest 
such  votes  cannot  be  made  legal  by  proof  that  the  persons  icho  cast  them 
could  have  furnished  such  affidavits  if  they  had  been  challenged,  or  other- 
wise  required  to  do  so.  In  that  case  it  was  conceded  that  the  persons,, 
some  600  in  number,  who  cast  the  votes  in  question  had  all  the  qualifi- 
cations of  electors,  but  that  the  "  burden  is  on  him  (the  voter)  to  furnish 
the  affidavit;"  that  he  was  the  agent  to  execute  the  law,  and  that  with- 
out such  affidavit  his  vote  cannot  be  counted,  though  in  every  other  re- 
spect he  was  a  legal  voter. 

This  case,  decided  by  the  supreme  court  of  Wisconsin,  declares  a. 
principle  which  disposes  of  the  question  raised  in  this  contest.  Here 
the  constitution  of  the  State  makes  every  voter  of  this  class  an  agent 
to  execute  it,  and  places  the  burden  upon  him  to  furnish  the  prerequi- 
site evidence  of  his  right  to  vote.  The  constitution  does  not  say  that 
he  shalfbe  required  to  produce  his  naturalization  papers  only  when  his 
vote  is  challenged.  By  that  instrument  he  is  informed  and  challenged 
in  advance  of  the  election  itself,  and  he  must  approach  the  polls  armed 
with  such  evidence  as  the  supreme  law  commands  him  to  produce  as  a 
condition  i)recedent  of  his  right  to  exercise  the  franchise  of  an  elector. 
Our  attention  has  not  been  directed  to  any  judicial  authority  in  conflict 
with  the  authorities  cited.  On  the  other  hand,  we  find  the  principle  to 
have  been  uniformly  applied,  and  we  are  therefore  of  the  opinion  that 
it  should  be  applied  to  this  case. 

The  principle  must  likewise  be  maintained  that  the  production  of  this 
evidence  at  the  trial  will  not  change  the  legal  status  of  the  voter,  and 


176  DIGEST    OF  .ELECTION    CASES. 

thus  make  these  votes  in  question  legal  votes.  Such  a  decision  would 
be  at  variance  with  a  well-established  principle  of  law  which  forbids 
the  making  of  an  act  valid  at  a  subsequent  period  which  at  the  time 
of  its  commission  was  void  because  prohibited  by  law. 

Votes  illegal  when  received  cannot  be  made  legal  by  evidence  offered 
■at  the  trial  which  should  have  been  produced  before  the  vote  was  cast. 
-(Shepperd  vs.  Gibbons,  2  Brewster,  p.  129;  Meyers  vs.  Moffet,  1  id.,  p. 
230.)    The  principle  is  again  established  in  the  following : 

If  election  officers  receive  a  vote  without  preliminary  proof  which  the  law  makes 
an  essential  prerequisite  to  its  reception,  such  vote  is  as  much  an  illegal  one  as  if 
the  voter  had  none  of  the  qualifications  required  by  law.  (Brightley's  Law  Cases, 
453-492,  notes;  also,  21st  Wisconsin,  566;  23d  Wisconsin,  630;  16th Michigan^  342.) 

The  principle  is  self-evident.  Voting  is  a  single  act  commanded  to 
be  performed  within  a  particular  time,  on  a  particular  day,  and  in  con- 
formity with  law ;  there  cannot,  therefore,  be  a  valid  performance  of 
the  requirements  of  the  law  at  a  period  subsequent  to  the  day  on  which 
alone  the  law  commanded  the  act  to  be  performed.  The  question  at 
issue  is  not  whether  such  evidence  as  required  by  law  to  establish  their 
right  to  vote  could  have  been  furnished,  but  whether  such  evidence  was 
furnished.  If  they  did  not  produce  it,  the  supreme  law  prohibited 
their  voting,  and  an  act  prohibited  by  law  cannot  be  valid. 

The  committee  being  of  the  opinion  that  all  votes  cast  by  persons  of 
foreign  birth  who  failed  to  produce  their  naturalization  papers,  or  papers 
declaring  their  intention  to  become  citizens,  as  required  by  the  con- 
stitution of  Florida,  are  illegal  and  void.  We  proceed  to  state  the  num- 
ber of  such  votes  which  from  the  testimony  should  be  deducted  from 
the  count. 

The  evidence  introduced  and  to  be  relied  upon  is,  first,  the  testi- 
mony of  the  voter  himself  that  he  did  so  vote  without  jiroducing  such 
evidence  of  his  right  to  vote ;  secondly,  his  own  admission,  under  oath, 
that  he  voted  for  contestee ;  and,  thirdly,  where  the  voter  refuses  to  tes- 
tify for  whom  he  voted  when  called  and  sworn  by  the  contestant,  the 
testimony  of  other  witnesses  that  he  adhered  to  and  supported  the  prin- 
ciples of  the  Democratic  party  and  was  a  Democrat.  This  is  a  well- 
settled  principle:  "  When  a  voter  refuses  to  testify  for  whom  he  voted, 
it  is  competent  to  resort  to  circumstantial  evidence,  such  as  that  he  was 
an  active  member  of  a  particular  political  party."    (McCrary,  sec.  293.) 

We  find  from  the  evidence  that  74  votes  should  be  deducted  from 
contestee's  vote  on  the  ground  that  they  were  cast  by  persons  of  this 
class.  Their  names,  and  page  of  the  record  containing  the  testimony 
relied  on,  are  given  in  Exhibit  B  of  the  appendix. 

ALACHUA  COUNTY. 

In  this  county  contestant  charges  fraud  and  "  ballot-box  stuffing"  at  j 
several  polls,  and  has  adduced  testimony  as  to  three  polls  to* sustain  ^ 
such  charges. 

Arredonda  poll. 

The  charge  touching  this  poll  is  in  substance  that  the  election  officers 
corruptly  made  a  false  return  of  the  votes  cast.  Under  the  laws  of 
Florida  each  county  is  divided  into  election  districts,  and  no  elector 
can  vote  in  any  district  other  than  that  in  which  he  resides. 

The  total  vote  returned  from  this  poll  was  in  1878  322,  the  highest 
Republican  vote  for  any  candidate  being  256  and  the  highest  Demo- 
cratic vote  for  any  candidate  being  66. 


BISBEE,    JR.,    VS.    FINLEY.  177 

In  ISSO  the  total  vote  returned  from  this  poll  for  Presidential  elect- 
ors was  322  (exactly  tbe  total  vote  returned  in  1878),  of  which  172  were 
returned  for  the  Democratic  electors  and  150  for  the  Republican  elect- 
ors; for  Representative  in  Congress  the  total  vote  returned  in  1880  was 
24 L  (81  less  than  for  Presidential  electors),  of  which  172  were  returned 
for  contestee  and  69  for  contestant;  and  for  the  legislative  ticket  the 
total  vote  returned  was  328,  of  which  172  were  for  the  Democratic  can- 
didates and  150  for  the  Pepublicau  candidates ;  according-  to  the  returns 
the  Democratic  vote  had  increased  from  06  in  1878  to  172  in  1880  and 
the  Republican  vote  correspondingly  diminished.  Your  committee  are 
convinced  from  the  evidence  that  the  return  of  the  v'otes  from  this  poll 
is  flagrantly  false,  and  is  not  a  true  statement  of  the  votes  as  they  were 
cast  at  the  election  in  question. 

The  return  is  impeached  and  destroyed  as  evidence  by  the  testimony 
of  the  electors  themselves.  Contestant  has  called  and  sworn  as  witnesses 
259  voters,  each  of  whom  testify  unreservedly  that  he  voted  for  con- 
testant, and  it  is  established  by  other  evidence  that  another  elector, 
deceased  before  the  testimony  was  taken,  voted  for  contestant,  making 
200  votes  cast  for  him  at  this  poll,  instead  of  69  given  him  by  the  re- 
turns. 

The  testimony  of  these  electors  will  be  found  in  the  record,  pp.  68  to 
218,  inclusive.  Their  names  are  on  the  poll-list  made  and  returned  by 
the  election  officers  (all  of  whom  were  the  partisan  friends  of  the  sitting 
member  but  one,  who  was  under  the  influence  of  liquor  on  election  day), 
and  it  cannot  therefore  be  disputed  that  the  260  shown  to  have  voted 
for  contestant  were  legal  electors,  nor  have  your  committee  any  doubt 
they  voted  for  contestant. 

As  to  the  testimony  of  some  of  these  voters,  the  criticism  is  made  that 
they  could  not  remember  the  names  of  all  the  candidates.  State  and 
national,  for  whom  they  voted. 

We  do  not  consider  it  remarkable  that  five  months  after  the  election 
an  elector  could  not  name  ^11  the  candidates  he  voted  for  out  of  a  dozen 
or  more  on  his  ballot,  while  he  would  be  likely  to  remember  the  name 
of  his  candidate  for  Congress  who  had  been  his  candidate  for  Congress 
for  three  elections  in  succession. 

Any  considerable  number  of  voters  proven  for  one  candidate  in  excess 
of  the  number  returned  for  him  has  always  been  regarded  as  evidence  of 
fraud  and  a  legitimate  method  of  impeaching  the  return.  Here  it  is  es- 
tablished that  191  more  votes  were  actually  cast  for  contestant  than 
were  returned  for  him.  We  think  it  is  sufficient  to  exclude  the  return 
from  the  count,  without  further  evidence. 

( "ne  provision  of  the  statute  is  that  "the  ballot-box  shall  not  be  con- 
cealed from  thepublic,"  and  section  21  (of  pamphlet  compilation  furnished 
the  committee  at  the  argument  of  the  case)  reads  as  follows:  "As  soon 
as  the  polls  of  an  election  shall  be  finally  closed  the  inspectors  shall  pro- 
ceed to  canvass  the  votes  cast  at  such  election,  and  the  canvass  shall  be 
public  and  continued  without  adjournment  mitil  completed.^'' 

Your  committee  find  from  the  evidence  that  these  provisions  of  the 
statute  were  violated,  and  without  any  re*ason  being  assigned  for  so 
doing. 

Both  the  witnesses  for  contestant  and  contestee  testify  that  after  the 

polls  were  closed  the  officers  of  the  election  took  the  ballot-box  away,  from 

the  polling-room  to  a  house  in  which  they  took  supper,  two  or  three 

hundred  yards  distant  from  the  building  in  which  the  election  was  held, 

H.  Mis.  35 12 


178  DIGEST    OF- ELECTION    CASES. 

and  the  ballot-box  was  carried  inside  of  the  supper-house.  Upon  this 
point  there  is  no  conflict  whatever  in  the  testimony. 

One  of  the  election  ofiBcers,  Flewellen,  a  political  friend  of  contestee, 
testifies  that  they  had  the  election  laws  with  them.  The  language  of 
this  witness  upon  this  subject  is  as  follows:  "We  tried  in  every  respect 
to  go  by  the  election  laws.  We  had  them'^with  ns,  and  complied  with  them 
as  icell  as  ice  knew  howJ'^     (Record,  384.) 

The  language  of  this  statute  is  so  plain  that  any  person  of  ordinary 
intelligence  could  not  fail  to  understand  its  meaning,  and  we  are  con- 
strained to  say  that  either  this  election  oificer,  Flewellen,  was  too  igno- 
rant to  read  a  few  plain  sentences  of  the  law,  or  has  testified  with  a 
reckless  disregard  for  the  truth. 

But  he  cannot  escape  condemnation  on  the  ground  of  being  ignorant,, 
for  it  sufficiently  appears  that  he  possessed  intelligence  and  was  the 
ruling  spirit  in  the  board  of  election  officers. 

The  testimony  establishes  that  the  adjournment  for  supper  was  not  a 
careless  or  ignorant  act,  but  that  this  officer,  who  swears  he  had  the 
election  laws  with  him,  had  ordered  supper  before,  the  closing  of  the 
polls,  for  all  the  election  officers  and  the  United  States  supervisors. 
(Testimony  of  Ed.  Sammons,  United  States  supervisor.  Record,  page  194.) 

It  is  also  proven  that  this  same  officer,  Flewellen,  had  in  his  posses- 
sion the  key  of  the  ballot-box  (testimony  of  George,  inspector,  Rec,  39 ^ 
testimony  of  J.  T.  Walls,  Rec,  188),  and  for  a  portion  of  the  time,  when 
they  were  in  the  supper-house,  he  also  had  possession  of  the  ballot-box: 
(testimony  of  Sammons,  Rec,  194). 

There  is  not  any  testimony  adduced  contradicting  the  fact  that  he 
had  the  key  of  the  box  about  the  middle  of  the  day  and  at  the  time  he 
went  to  the  supper-house,  and  he  admits  in  his  own  testimony  that  he 
had  the  possession  of  the  ballot-box  while  in  the  supper-house.  He 
says : 

After  the  Democratic  inspectors  got  through  eating  I  went  with  the  Republican 
inspector  into  another  room,  where  his  supper  was  served  ;  there  he  gave  me  the  ballot- 
box,  and  I  held  it  immediately  in  his  presence  until  he  got  through  eating,  and  then  I  gave  the 
box  back  to  him. 

This  officer  here  tries  to  shield  himself  from  the  charge  of  tampering 
with  the  box,  and  to  produce  the  impression  that  he  could  not  have 
tampered  with  it  without  being  observed  by  the  Republican  inspector. 
But  we  think  it  wholly  incredible  that  the  officer  Flewellen  so  held  the 
box  under  the  eyes  of  the  other  officer  during  the  entire  time  he  was  eat- 
ing supper  that  he  could  not  have  tampered  with  it  without  being  dis- 
covered. Besides,  one  witness,  Ransom  Baskins,  who  swore  he  voted 
a  Democratic  ballot  (Record,  p.  200),  testifies  that  the  officers  of  the  elec- 
tion used  whisky  freely ;  that  they  drank  one  bottle  and  one  flask  of 
liquor;  and  with  regard  to  this  officer,  Virgil  George,  he  says,  "I  saw 
him  drinking,  and  at  times  with  his  eyes  shut  and  his  head  nodding." 
This  officer  was  chosen  by  the  other  two  inspectors,  in  a  manner  not 
authorized  by  law,  in  the  place  of  his  son,  Ephraim  George,  appointed 
by  the  county  commissioners,  against  the  protest  of  a  Rei)ublican  com- 
mitteeman, on  the  ground  tiiat  he  was  a  Democrat,  and  under  the  law 
the  Republicans  Avere  entitled  to  one  of  the  election  officers  (Record,  p. 
217). 

Contestee's  witness  proves  that  Ephraim  was  a  disreputable  man 
(Record,  380,  381),  and  had  not  been  in  the  county  for  some  time  prior 
to  the  election,  and  not  being  present  when  the  polls  opened,  Virgil,  his 
father,  was  elected  in  his  stead  by  the  other  officers,  when,  according 
to  law,  the  election  should  have  been  by  the  voters  present  at  the  polls- 


BISBEE,    JR  ,    VS.    FINLEY.  179 

It  was  proven  by  one  of  its  election  officers  that  George  left  the  polliug- 
roora  several  times  during  the  day  of  the  election.     (Record,  390.) 

The  manner  in  which  he  was  elected  being  considered,  his  making  no 
opposition  to  adjonrnment  after  the  polls  closed,  which  the  law  prohib- 
ited, nor  to  Flewellen  having  the  ballot-box  and  the  key  thereof  at  the 
same  time,  which  the  law  also  prohibited ;  that  he  drank  liquor  to  ex- 
cess, from  the  effects  of  which  he  was  partially  asleep  at  times,  it  is 
evident  that  he  was  blind  to  much  that  transpired,  and  was  unfaithful 
to  his  trust  and  the  duties  of  his  office. 

The  law  only  authorized  an  adjournment  for  dinner  between  the  hours 
of  12  m.  and  1  o'clock  p.  m.  for  thirty  minutes,  and  commanded  that 
(luring  such  adjournment  "the  ballot-box  shall  be  sealed  and  kept  in 
possession  of  an  inspector,  who  shall  not  have  the  key  thereof." 

It  is  established  by  the  evidence  that  the  electionofficers  remained 
in  the  polling-room  after  the  polls  were  declared  closed  until  it  icas  darl; 
with  the  shutters  of  tbe  polling  windows  so  nearly  closed  as  to  obstruct 
observation  from  the  outside,  during  which  time  they  did  not  commence 
the  canvass  of  the  votes ;  that  after  it  was  closed  Flewellen,  having  the 
ballot-box  in  his  possession,  and  the  key  too,  which  the  law  prohibited^ 
announced  that  he  had  had  supper  prepared  for  the  officers,  whereupon 
tbey  adjourned  to  the  supper-house,  and  in  the  supper-house  this  offi- 
cer, Flewellen,  again  has  possession  of  box  and  key.  These  officers 
excluded  from  the  polling-room  the  Republican  watchers,  who  under 
the  law  had  the  right  to  be  present  and  witness  the  canvass,  and  to 
have  a  copy  of  the  result  of  the  election.  The  public  view  of  the  ballot- 
box  was  also  obstructed  during  the  day  by  the  construction  of  a  narrow 
passage-way  of  boards  extending  back  from  the  polling  window  some 
sixteen  feet,  through  which  the  voters  approached  the  polls.  (Record, 
p.  187.) 

There  was  a  small  vote  comparatively  to  be  polled,  and  such  a  con- 
trivance was  wholly  unnecessary  from  any  apprehension  that  any 
elector  would  lose  his  vote  by  the  voters  crowding  around  the  polls. 

The  oath  of  office  prescribed  for  the  officers  of  election  in  Florida  to 
be  taken  previous  to  receiving  any  votes  is  ^^that  they  icill  perform  the 
duties  of  clerJc  or  inspector  of  election  according  to  law,  and  icill  endeavor 
to  prevent  all  fraud,  deceit,  or  abuse,  in  conducting  the  same.-^ 

There  is  no  room  for  doubt  that  these  officers  of  the  election  violated 
their  official  oath  and  the  penal  statute  of  the  State  and  shamefully  dis- 
regarded their  duties  which  they  had  sworn  to  perform. 

Having  deliberately  done  this,  we  do  not  think  any  testimony  given 
by  them  in  this  case  uncorroborated  by  other  evidence  is  entitled  to 
much  weight. 

Your  committee  find  no  reason  assigned  in  the  testimony  for  the 
several  violations  of  mandatory  pro\ision  of  the  statute  under  which 
the  election  was  held,  and  the  conclusion  is  irresistible  that  the  ad- 
journment for  supper  and  the  removal  of  the  ballot  from  the  polling- 
room  was  a  preconcerted  act,  and  for  a  corrupt  purpose. 

The  total  number  of  votes  cast  were  according  to  the  returns  but  328 
Ifecord,  245),  though  there  are  334  names  on  the  poll-list  (Record, 
i'44),  and  to  canvass  this  number  of  ballots  was  not  a  work  requiring 
much  time,  and  certainly  does  hot  furnish  any  excuse  for  an  adjourn- 
ment before  the  canvass  was  made,  which  the  law  expressly  prohibited. 

Without  any  further  statement  of  the  evidence  touching  the  action 
of  the  election  officers  on  this  branch  of  the  case,  your  committee  are  of 
opinion  that  the  disregard  of  the  mandatory  provisions  of  the  election 
laws  was  willful  and  with  a  dishonest  purpose  of  securing  an  oppor- 


180  DIGEST    OF    ELECTION   CASES. 

tunity  to  commit  fraud,  which  such  laws  were  intended  to  prevent,  and 
that  the  conduct  of  these  officers  was  such  as  to  render  their  acts 
unworthy  of  credit  and  to  entirely  destroy  tlie  jrrima  facie  character  of 
their  return  as  evidence  of  the  result  of  the  election  at  this  poll. 

For  this  reason,  as  well  as  for  the  reason  that  the  return  is  impeached 
and  destroyed  by  the  testimony-  of  the  electors,  your  committee  have  ex- 
cluded this  return  from  the  count.  The  testimony  with  regard  to  this 
poll  taken  in  behalf'of  the  sitting  member  will  be  found  in  the  Record, 
pp.  378  to  394,  inclusive,  and  the  testimony  in  behalf  of  contestant 
other  than  that  of  the  voters  from  pp.  186  to  196. 

The  precedents  for  excluding  a  return  in  such  a  case  as  tljis  are  nu- 
merous, and  the  i)riuciples  of  law  which  we  have  followed  are  well 
settled.  We  refer,  however,  to  McCrary  on  Elections,  sec.  302,  303; 
Brightley's  Leading  Cases,  p.  493;  1st  Brewster's  Reports,  pp.  66,107; 
Washburn  vs.  Voorhies  (2d  Bartlett,  54);  Reed  vs.  Julian  (2d  Bartlet.tj 
S22);  Finley  vs.  Walls  (Smith). 

The  sitting  member  took  the  testimony  of  the  clerk  of  the  circuit 
court  of  this  county,  to  whom  the  ballot-boxes  were  delivered  after  the 
election. 

This  clerk,  nearly  six  months  after  the  election,  produces  the  box, 
opens  it,  examines  the  ballots  in  it,  and  testified  that  there  were  in  the 
box  85  Republican  ballots,  counting  no  name  for  member  of  Congress ; 
that  there  were  but  68  ballots  for  contestant,  though  the  return  gives 
him  69;  148  ballots  for  Republican  Presidential  electors,  whereas,  the 
return  gives  them  150;  and  that  there  were  but  140  ballots  for  Repub- 
lican candidate  for  governor,  though  the  return  gives  him  143.  (Record, 
p.  399.) 

It  is  claimed  that  these  ballots  in  the  box  are  better  evidence  of  the 
result  than  the  testimony  of  the  voters. 

As  to  the  testimony  of  this  clerk,  it  is  sufficient  to  say  that  there  is  no 
law  in  Florida  providing  for  the  preservation  of  the  ballots  for  the  pur- 
pose of  being  used  as  evidence;  the  ballots  are  not  evidence  sufficient 
to  overcome  the  testimony  of  the  voters  where  the  question  of  fraud 
and  tampering  with  the  ballot-box  is  raised.  (McCrary  on  Elections, 
sec.  276;  i<?.  439;  Washburn  vs.  Yoorhies,  2d  Bartlett,  54.) 

McCrary  says  in  "  such  a  case  the  ballots  might  sustain  the  fraud." 
(McCrary,  sec.  439 ;  also  Reed  vs.  Julian,  2  Bait.,  822.) 
'  These  ballots  cannot  be  entitled  to  much  weight  as  evidence  of  the 
result  of  the  election,  where  it  has  been  shown  that  the  acts  and  con- 
duct of  the  election  officers  are  unworthy  of  credit  and  their  returns 
set  aside  and  regarded  as  unreliable.  Having  created  for  themselves, 
in  violation  of  law  and  their  official  oaths,  opportunities  for  tampering 
with  the  box,  it  is  legitimate  to  infer  that  they  would  endeavor  to  put 
ballots  in  the  box  that  would  support  the  return. 

But  it  will  be  seen  that,  comparing  the  votes  returned  with  those  in 
the  box  at  the  time  the  testimony  was  taken,  that  the  return  gives  con- 
testant one  more  vote  than  there  was  in  the  box,  the  Republican  Presi- 
dential electors  two  more,  and  the  Republican  candidate  for  governor 
three  more. 

This  small  discrepancy  we  think  is  significant.  It  is  hardly  possible 
that  election  officers,  proceeding  in  the  orderly  discharge  of  their  duties, 
could  make  the  mistake  of  returning  more  votes  for  the  candidates  of 
their  opponents  than  there  were  ballots  cast  for  them,  and  this  discrep- 
ancy induces  the  belief  that,  in  placing  ballots  in  the  box  for  the 
purpose  of  having  the  number  thereof  the  same  as  the  number  of  votes 


BISBEE,    JR.,    VS.    FINLEY.  181 

given  ill  the  false  return  which  they  made,  they  committed  an  error  in 
their  count. 

The  sitting  member  has  urged  that  the  contestant's  vote  was  reduced 
at  this  poll  by  the  voting  of  a  ballot  not  containing  the  name  of  any  can- 
didate for  Congress.  For  convenience  we  will  distinguish  this  from  the 
other  ballots  by  designating  it  as  a  bogus  ballot. 

Your  committee  do  not  find  any  evidence  to  sustain  this  claim  of 
contestee. 

The  proof  is  that  the  Republicans  in  this  county  were  divided  into 
factions,  and  run  two  distinct  tickets  for  the  State  "^legislature.  These 
factions  were  known  as  the  Walls  and  Dennis  factions,  the  former  being 
a  candidate  for  the  Senate  on  one  ticket,  and  Dennis  for  the  assembly 
on  the  other.  The  specific  claim  and  theory  of  contestee  is,  that  at 
this  poll  the  Dennis  faction  voted  a  ticket  blank  as  to  the  office  of  Rep- 
resentative in  Congress.  The  only  evidence  of  such  bogus  tickets  being 
voted  is  that  they  were  found  in  the  box.  But  we  have  already  shown 
that  on  an  issue  of  this  kind,  where  the  officers  are  charged  with  fraud, 
the  ballots  are  not  sufficient  evidence  to  outweigh  the  testimony  of  the 
voter. 

Contestee  has  not  attempted  to  prove  by  direct  evidence  that  a 
single  elector  voted  such  a  ballot.  He  has  not  attempted  to  prove  that 
any  one  at  the  polls  on  the  day  of  the  election  attempted  to  induce  any 
voter  to  vote  such  a  ballot.  On  the  other  hand,  contestant  has  proven 
by  Walls,  who  resides  in  this  election  district,  that  he  did  not  see  any 
one  canvassing  against  or  opposing  contestant  on  election  day;  and  by 
Charles  Dubose,  an  ardent  supporter  of  the  Dennis  faction,  that  he  dis- 
tributed the  tickets  of  this  faction,  and  that  contestant's  name  was  on 
them.  Dubose  was  chairman  of  a  club,  having  164  members,  a  list  of 
the  names  ot  which  is  put  in  e^■idence.     (Record,  pp.  191, 196, 284:.) 

The  testimony  of  the  259  voters  sworn  as  witnesses  for  contestant 
establishes  the  fact  that  260  electors  voted  for  contestant,  and  that 
Walls  and  Dubose  distributed  the  greater  part  of  the  Republican  bal- 
lots at  the  polls;  and  this,  in  the  absence  of  any  evidence  showing  that 
these  bogus  tickets  were  actually  voted,  is  conclusive  that  these  ballots 
were  fraudulently  put  in  the  box. 

There  is  some  evidence  that  Dennis,  a  candidate  for  the  legislature, 
professed  at  times  to  be  opposed  to  contestant's  election  (Record,  p. 
141),  and  there  is  also  some  evidence  that  such  opposition,  if  any  made, 
had  been  withdrawn  before  the  election.  (Record,  p.  988.)  As  before 
stated,  the  testimony  of  the  voters,  as  against  any  evidence  adduced, 
is  conchisive  on  this  point,  but  the  returns  from  the  polls  unassailed 
])roves  beyond  controversy'  that  the  contest  between  the  two  Repub- 
lican factions  had  no  effect  upon  contestee's  vote.  There  were  in  this 
county  seventeen  polling  places ;  at  three  of  these  polls  fraud  is  alleged 
and  proven  by  the  testimony  of  the  voters,  and  at  the  other  fourteen  poll» 
the  returns  give  the  contestant  about  the  same  number  of  votes  as  both 
Republican  local  tickets  received,  and  in  some  of  the  election  districts 
adjoining,  and  in  close  proximity  to  this  election  district  of  Arredonda, 
tlie  contestant's  vote  exceeds  the  combined  vote  received  by  both  of  the 
Republican  legislative  tickets.  We  regard  this  as  conclusive  evidence 
that  all  the  Republicans  voted  for  contestant  as  solidly  as  if  they  had 
united  on  one  legislative  ticket. 

Again,  it  is  not  clearly  shown  whohad  these  bogus  tickets  printed;  if 
done  by  contestee's  associates,  he  could  easily  have  shown  it.  Nor 
would  the  voting  such  bogus  tickets  have  increased  the  number  of  votes 
for  the  sitting  member:  whereas  he  and  all  the  Democratic  candidatesp 


182  DIGEST    OF   ELECTION    CASES. 

have  on  the  returns  172  votes,  as  against  66  votes  two  years  previous,  a 
gain  of  about  one  huuclred  and  seventy  per  cent.,  without  explanation, 
and  besides  shown  to  be  fraudulent  by  the  testimony  of  the  electors  them- 
selves. This  disposes  of  all  questions  as  to  this  poll,  and  your  committee 
decide  that  the  contestant  is  entitled  to  have  260  votes  counted  for  him 
at  this  poll,  or  191  in  addition  to  his  returned  vote;  and  as  contestee 
has  not  proven  any  votes  for  himself,  none  can  be  counted  for  him. 

NEWNONSVILLE  POLL. 

The  charge  is  made  that  fraud  was  committed  at  this  poll  by  stuffing 
the  ballot-box  with  Democratic  ballots.  Two  hundred  and  ninety-six 
votes  were  returned,  150  for  Bisbee,  and  146  for  Finley.    (Record,  p.  19.) 

By  the  electors  called  and  sworn  as  witnesses  it  is  proven  that  168 
votes  were  cast  for  contestant;  18  in  excess  of  the  number  returned. 
(Record,  pp.  23  to  65,  and  pp.  296  to  313.) 

It  is  also  clearly  proven  that  when  the  polls  closed  there  were  29  more 
ballots  in  the  box  than  names  of  electors  on  the  poll-list,  which  excess 
was  drawn  out  and  destroyed  (Record  pp.  31,  182,  185) ;  that  Demo- 
cratic ballots  were  found  in  the  box  folded  together,  which  were  counted; 
that  before  the  ballots  were  counted  a  Democratic  officer  stirred  or  mixed 
the  ballots  up  with  his  hand  (Record,  p.  183) ;  and,  after  drawing  out 
and  destroying  21  ballots,  on  a  second  count,  8  more  in  excess  of  the  poll- 
list  was  discovered,  which  were  drawn  out  by  the  Republican  inspector. 

It  is  proven  that  5  of  the  8  so  destroyed  were  Republican  bailors,  and 
that  the  greater  portion  of  the  other  21  were  also  Republican  ballots. 
We  conclude  from  the  evidence  that  this  excess  was  caused  by  the  vot- 
ing of  two  or  more  ballots  by  one  voter,  and  that  this  was  done  by  the 
supporters  of  contestee.  Rollins  testifies  that  he  was  in  the  polling- 
room  and  kept  a  tally-sheet,  and  from  the  appearance  of  the  ballots  and 
the  known  fact  that  175  Republicans  voted  (of  whom  one  did  not  vote  for 
member  of  Congress,  Record,  p.  43),  and  that  the  mostofthe  ballots  de- 
stroyed were  Republican,  that  174  votes  were  cast  for  contestant.  There 
were  150  votes  returned  for  contestant;  five  of  the  eight  last  destroyed 
being  Republican,  on  the  theory  that  illegal  Democratic  ballots  took  their 
place,  would  make  10  more  votes  for  contestant  in  the  final  result ;  and 
on  the  same  theory  if  7  of  the  other  21  votes  destroyed  were  Republican, 
it  would  make  14  more  votes,  and  in  all  174,  which  Rollins  testifies  to. 
There  would  still  be  121  vdtes  to  be  accounted  for  to  equal  the  number 
of  voters  on  the  poll -list. 

On  the  part  of  contestant  it  is  insisted  that  the  return  should  be  re- 
jected, and  only  the  votes  otherwise  jjroven  counted.  And  our  atten- 
tion is  called  to  the  case  of  Washburn  vs.  Voorhies  (2d  Bartlett's  Re- 
ports, p.  54),  where  returns  were  rejected  on  proof  of  an  excess  of  votes 
proven  for  one  candidate  over  his  returned  votes  of  about  eight  per  cent., 
and  at  one  poll  of  four  per  cent,  of  the  total  vote  returned. 

McCrary  says  (sec.  371),  "it  is  very  clear  that  if  the  returns  are  set 
aside  no  votes  not  otherwise,  proven  can  be  counted."  The  supreme 
court  of  Kew  York,  in  7  Lansing,  274,  and  other  authorities  have  de- 
clared and  applied  this  as  a  settled  principle,  which  we  do  not  propose 
to  overrule. 

Another  well-settled  principle  is  that  no  poll  shall  be  entirely  set 
aside  if  the  return  can  be  corrected  with  reasonable  certainty.  The 
only  correction  of  the  return  which,  from  the  evidence,  could  possibly 
be  made  would  be  to  count  174  votes  for  contestant  and  121  votes  for 
contestee.     While  we  think  this  would  approximate  the  probable  true 


BISBEE,    JR,    VS.    FINLEY.  183 

state  of  the  vote  at  this  poll  we  cauuot  say  from  the  evidence  that  such 
a  result  is  reliably  proven..  The  only  other  disposition  that  can  be 
made  of  this  poll  is  the  rejection  of  the  returns  and  count  no  votes  save 
the  168  proven  for  contestant,  and  from  the  views  we  have  taken  of  the 
whole  case  it  is  not  material  to  the  final  result  which  alternative  is 
adopted.  • 

paekee's  stoee  poll. 

This  poll  is  also  assailed  by  contestant,  who  avers  that  the  return  is 
a  false  statement  of  the  votes  cast. 

There  were  but  306  votes  returned  for  Representative  in  Congress — 
lol  for  Bisbee,  and  155  for  Finley.  (Record;  p.  262.)  There  are  336 
names  on  the  poll-list.     (Record,  p.  374.) 

It  is  satisfactorily  proven  by  the  electors  sworn  as  witnesses  for  con- 
testant that  179  votes  were  cast  for  him  instead  of  151  returned,  an 
excess  of  28  votes.  (Record,  pp.  323  to  371).  There  were  ballots  in 
the  box  at  the  close  of  the  election  in  excess  of  the  poll-list  to  the  num- 
ber of  six  or  seven  (Record,  p.  355),  and  five  votes  tendered  by  Repub- 
licans and  rejected,  which  are  included  in  Exhibit  A  of  the  appendix. 

This  excess  of  28  votes  proven  for  contestant  over  the  number  re- 
turned for  him  is  not  explained  in  any  manner  by  the  testimony. 
Whether  it  is  the  result  of  fraud  in  the  officers  of  election  or  of  gross 
carelessness  in  the  count  there  is  no  proof  to  show,  but  upon  the  tes- 
timony adduced  it  must  have  been  one  or  the  other.  In  counting  so 
.small  a  number  of  votes  it  is  wholly  improbable  that  the  election  offi- 
cers innocently  made  the  mistake  of  sui)pressing  28  votes  for  contest- 
ant— nearly  one-sixth  of  the  total  vote  cast  for  him.  Contestee  has  not 
taken  any  testimony  with  respect  to  this  poll,  and  we  are  required  to 
dispose  of  this  question  upon  the  evidence  in  the  record. 

There  is  no  evidence  by  which  the  return  can  be  corrected.  The  re- 
turn is  proven  to  be  unreliable  as  evidence  of  the  true  vote,  and  the  lat- 
ter cannot  be  ascertained  by  any  other  evidence. 

We  think,  therefore,  that  this  return  should  be  set  aside  and  that  no 
votes  not  otherwise  proven  should  be  counted. 

It  may  be  claimed  that  it  would  be  proper  to  credit  contestee  with 
the  difierence  between  the  returned  total  vote  and  the  number  proven 
for  contestee,  but  this  would  be  an  assumption  without  evidence  and 
an  evasion  of  the  rule  that  when  a  return  is  rejected  each  candidate 
must  prove  his  vote  by  other  evidence. 

If  legal  votes  were  cast  for  contestee  he  had  an  opportunity  to  prove 
them,  but  has  neglected  to  do  so. 

MADISON  COUNTY. 

In  this  county  the  committee  fintl  from  the  evidence  that  a  systematic 
scheme  of  stuffing  the  ballot  boxes  at  all  of  the  Republican  polls  with 
Democratic  ballots  was  adopted  by  the  political  opponents  of  the  con- 
testant^ thereby  creating  an  excess  of  ballots  over  the  poll-lists,  and 
that  at  the  subsequent  canvass  the  officers  of  the  election  drew  from  the 
ballot-box  and  destroyed  Republican  ballots  to  the  extent  of  such  ex- 
cess, and  that  by  this  method  the  contestant's  majority  in  this  county 
was  reduced  several  hundreds  of  votes. 

They  further  find  that  the  contestant  attempted,  in  accordance  with  a 
settled  priucii»le  of  law.  to  call  as  witnesses  all  the  known  Republican 
electors  at  the  several  Republican  polls  where  this  ballot-box  stuffing 


184  DIGEST    OF-iELECTION    CASES. 

occurred  for  the  puri)ose  of  establishing  his  true  aud  lawful  vote  by 
proving  by  their  own  testimony  that  they  voted  for  him.  For  this  pur- 
pose contestant's  attorney,  accompanied  by  a  proper  oflficer,  proceeded 
to  this  county  to  take  the  necessary  depositions.  On  the  daj'  succeed- 
ing their  arrival,  as  disclosed  by  the  evidence,  an  altercation  occurred 
l>etween  a  witness  whose  testimony  had  been  given  the  day  preceding 
in  behalf  of  the  contestant  and  one  Patterson,  who  had  been  accused  of 
election  frauds,  which  altercation  resulted  in  the  death  of  Patterson  in 
the  presence  of  the  officers  engaged  in  taking  the  testimony. 

This  act  occasioned  the  immediate  suspension  of  taking  the  testimony 
in  this  county.  Great  excitement  ensued,  and  the  State  militia  were 
called  out  to  aid  in  preserving  the  peace.  So  violent  were  these  pro- 
ceedings that  the  contestant's  attorney  and  the  officer  engaged  in  tak- 
ing the  testimony  were  compelled  to  seek  safety  by  flight,  and  thi» 
officer  was  afterwards  arrested  and  imprisoned  for  several  weeks,  and 
finally  discharged  by  the  order  of  the  supreme  court  of  the  State.  For 
about  a  month  contestant's  attorney  was  prostrated  by  so  serious  an 
illness,  resulting  from  exposure  and  fatigue,  as  well  nigh  i)roved  fatal^ 
preventing  all  attention  to  business. 

At  the  request  of  the  Department  of  Justice,  the  United  States  judge 
in  Florida  and  the  marshal  of  that  State  proceeded  to  this  county  to 
take  the  testimony  for  the  contestant,  but  were  compelled  to  abandon 
the  effort,  as  it  was  found  to  be  impracticable  in  the  then  existing  state 
of  public  excitement.  Many  witnesses  who  had  testified  before  the 
United  States  court  at  Jacksonville,  in  the  previous  month  of  Decem- 
ber, exposing  the  frauds  in  this  county,  became  so  alarmed  by  threats 
of  violence  of  political  opponents— one  of  their  number,  indeed,  having 
been  in  the  mean  time  shot  and  severely  wounded — would  not  return  tO' 
their  homes. 

As  soon  as  contestant's  attorney,  who  had  the  general  charge  of  his 
case,  recovered  sufficiently  to  attend  to  business,  he  endeavored  to  se- 
cure the  services  of  other  attorneys  politically  friendly  to  the  contestant 
to  take  this  testimony,  but  without  success,  as  they  peremptorily  de- 
clined to  go  into  this  county  and  others  into  which  the  excitement  had 
extended. 

At  this  juncture  of  affairs,  contestant,  then  sitting  as  a  member  of  the 
Forty-sixth  Congress,  employed  an  attorney  residing  in  Washington^ 
D.  C,  to  represent  him  in  taking  the  depositions,  in  Jacksonville,  of  the 
witnesses  who  were  refugees  from  Madison  County,  and  to  proceed 
thence  to  Alachua  County  to  take  the  testimony  there. 

The  committee  are  of  the  opinion  that  the  foregoing  evidence  satis- 
factorily demonstrates  the  causes  which  prevented  the  contestant  from 
establishing  his  vote  at  the  polls  in  the  county  of  Madison,  tainted  with 
fraud  by  the  testimony  of  the  voters  themselves.  To  detail  at  length 
all  the  occurrences  in  this  county  as  disclosed  by  the  evidence  would 
enlarge  the  report  beyond  proper  limits,  and  therefore  the  statement 
will  be  condensed  as  mucli  as  possible. 

It  is  in  evidence  that  the  Democratic  ballots  voted  in  this  county  were 
not  more  than  half  the  size  of  and  of  finer  quality  of  paper  than  the 
Republican  ballots,  and  could  be  readily  distinguished  from  the  latter 
by  even  the  sense  of  touch.  This  fact  is  established  by  the  testimony 
of  the  witnesses  of  both  contestant  and  contestee,  and  by  specimens  of 
ballots  in  evidence,  aud  it  is  unnecessary  to  further  allude  to  the  e^^- 
dence  on  this  point.  Likewise,  upon  the  question  of  an  excess  of  ballots, 
and  of  two  or  more  having  been  folded  so  that  one  would  be  x>iirtially 
inclosed  in  another,  and  in  such  manner  as  when  handled  or  shakea 


BISBEE,    JR.,    VS.    FINLEY.  185 

they  would  separate,  there  is  no  disagreement  between  the  witnesses, 
of  the  contestant  and  contestee. 

The  testimony  of  Carroway  Smith,  an  election  officer  at  poll  No.  1^ 
Madison  County,  a  political  friend  of  contestee,  reads  as  follows  apon 
this  point : 

At  tlie  closing  of  the  poll  at  the  time  required  by  law,  which  time  was  8un(iown^ 
we  ohtaiued  lights  and  proceeded  to  canvass  the  vote  by  tirst  ascertaining  how  many 
votes  have  been  cast  from  the  poll-list ;  one  of  the  inspectors  counted  the  ballots  in- 
the  box  which  were  in  excess  of  the  number  of  votes  cast  as  shown  by  the  poll-list; 
they  were  counted  rather  hurriedly,  as  I  thought,  and  not  wishing  to  have  any  mis- 
take, I  then  counted  them,  examining  every  ticket  carefully  and  found  oiit  that  there 
was  an  excess.  I  think  about  fifty  votes:  I  counted  them  over  a  third  time,  with  the 
assistance  of  Mr.  Forrester,  Mr.  Gambler  being  there,  standing  by  the  box,  and  found 
that  my  second  count  was  correct.  What  I  mean  by  examining  every  ticket  care- 
fully, tiiat  after  counting  a  few  votes,  we  found  a  ticket  laying  in  another,  and  it  was 
unanimously  decided  by  the  inspectors  that  it  was  not  a  double  ticket,  Mr.  Gambler 
giving  his  opinion  first;  I  found  a  good  many  in  the  same  way,  which  accounts  for 
the  ditference  in  the  excess  of  the  first  and  second  counts,  the  tirst  excess  being  about 
between  twenty  and  twenty-five.  We  then  proceeded  to  draw  out  said  excess.  Mr. 
Forrester,  with  his  back  to  the  box,  did  the  drawing,  and  placed  the  drawn  ballots- 
in  my  hat,  held  by  me  for  that  pnrjiose.  After  drawing  out  said  excess,  I  took  them 
to  the  middle  of  the  room  without  examination,  placed  them  upon  the  floor,  and  some 
one  of  us,  Mr.  Blackwell,  I  thiuk,  the  United  States  supervisor,  set  them  on  fire;  we 
then  proceeded  to  ascertain  for  whom  the  remaining  votes  were  cast  in  the  manner 
required  by  law.     (Record,  p.  lUlT.) 

The  committee  find  that  the  sitting  member  did  not  examine  any  wit- 
nesses with  regard  to  any  of  the  polls  in  this  county  except  polls  iibs* 
1  and  2  in  the  town  of  Madison,  and  that  his  witnesses  support  the 
testimony  adduced  by  contestant  concerning  difference  in  ballots,  ex- 
cess over  poll -lists,  and  the  folding  together  of  the  same ;  that  th& 
contestee  did  not  interrogate  any  of  bis  witnesses  as  to  the  charac- 
ter of  ballots  drawn  out  and  destroyed,  whether  they  were  Democratic 
or  Kepublicau  ;  and  as  it  was  a  very  material  thing  to  be  established, 
the  inference  to  be  drawn  is,  that  the  contestee's  attorney  was  aware  of" 
the  fact  that  in  the  main  they  were  Republican  ballots,  and  that  the  testi- 
mony on  behalf  of  contestant,  taken  before  contestee  examined  his  wit- 
nesses, establishes  the  fact  that  they  were  Eepublican  ballots  thus  drawn 
out  and  destroyed.  From  this  evidence  the  committee  concludes  that 
the  following  liei)iiblicau  ballots  were  drawn  from  the  ballot  boxes  and 
destroyed,  to  wit :  At  the  Greenville  poll,  52;  at  the  Madison  poll  No.  1,. 
52 ;  at  Madison  poll  No.  2,  14  votes,  and  that  20  more  in  excess  on  the 
second  count  were  counted,  which  added  that  number  illegally  to  con-^ 
testee's  vote ;  at  Cherry  Lake  poll,  14  votes,  and  at  Mosely  Hall,  No.  4 
jioll,  not  less  than  10  votes. 

The  committee  are  therefore  of  the  opinion  that  the  fraud  thus  com- 
mitted at  the  five  polls  last  mentioned  should  be  corrected  by  adding 
142  votes  to  the  contestant's  vote,  and  deducting  162  votes  from  contes- 
tee's vote.  By  thus  correcting  and  purging  the  polls  in  question  the 
contestant's  majority  at  the  five  polls  will  be  increased  304  votes. 

The  evidence  likewise  establishes  the  fact  that  not  less  than  eight  Ee- 
jnihlican  electors,  duly  registered,  offered  to  vote  at  the  Greenville  poU^. 
and  declared  their  willingness  to  take  the  oath  of  a  challenged  voter, 
but  were  denied  the  right  to  vote.  (Testimony  of  McKay,  Kecord,  p. 
929.     Testimonv  of  Stripling,  Record,  p.  943.) 

It  is  also  proven  that  at  the  Cherry  Lake  poll  two  Republican  electors- 
were  illegally  denied  the  right  to  vote  (Record,  pp.  914  and  921),  and 
that  one  illegal  Democratic  ballot  was  cast  at  this  poll,  the  person  cast- 
ing it  not  taking  the  oath  of  a  challenged  voter,  though  challenged  as. 
a  minor.     (Record,  pp.  915-922.) 


186  DIGEST    OF    ELECTION   CASES. 

It  is  further  established  by  the  testimony  of  Watt  S.  Gheater,  United 
States  deputy  marshal,  that  13  Republican  electors  were  illegally  denied 
the  right  to  vote  a  Republican  ballot  at  tlie  Mosely  Hall  poll  Xo.  4 
•(Record,  pp.  940,  941),  and  his  testimony  remains  unassailed  by  any 
other  testimony.  There  were  ten  polling  places  in  this  county,  from  all 
of  which  returns  were  made  by  the  olBcers  of  the  election,  and  certified 
copies  thereof  are  in  evidence  (Record,  pp.  869  to  885).  From  these  10 
returns,  duly  signed  by  the  officers  of  the  election,  it  appears  that  1,380 
votes  were  returned  for  Finley  and  1,488  votes  forBisbee,  or  a  majority 
:for  contestant  of  108  votes. 

The  official  county  return  (Record,  p.  860)  gives  Finley  1,055  votes 
^nd  Bisbee  1,014  votes,  or  a  majority  for  Finlej^  of  41  votes  instead  of 
108  majority  for  Bisbee  on  the  face  of  the  ten  district  returns.  This  dis- 
crepancy arises  from  the  fact  that  the  votes  returned  from  the  two  i)olls 
known  as  Madison  No.  2  and  Cherry  Lake  are  not  included  in  the  county 
returns.  From  these  two  polls  325  votes  were  returned  for  Finley  and 
474  votes  for  Bisbee  (Record,  pp.  871,  881),  which  added  to  the  votes  of 
the  respective  parties  in  the  county  return  make  the  exact  number  of 
votes  given  for  Finley  and  Bisbee  in  the  ten  district  returns  in  the  county. 
The  committee  are  of  the  opinion  that  the  omitted  returns  from  Madi- 
son Ifo.  2  and  Cherry  Lake  polls,  being  unassailed,  should  be  counted. 

Finley.  Bisbee. 

"The  vote  there,  as  officially  returned  by  the  election  officers,  is 1, 380  1, 488 

Deduct  162  from  Finley  for  excess  taken  out  and  destroyed 162        

And  add  142  to  Bisbee  for  same 142 

Also,  add  23  tendered  and  refused  for  conte'fetant,  and  deduct  1  illegal 

vote  from  contestee 1  23 

1,217        1,653 

Majority  for  Bisbee  of  436,  instead  of  108  as  returned. 

If  there  were  any  doubt  of  the  correctness  of  the  foregoing  conclu- 
sion the  committee  find  other  evidence  of  a  positive,  confirmatory 
■character,  calculated  to  produce  the  conviction  that  the  contestant's 
majority  in  this  county  was  even  larger  than  436. 

Without  pausing  to  dwell  upon  the  testimony  relating  to  the  returns 
from  the  Republican  poll  known  as  Hamburg,  which  in  the  recent  elec- 
tion gave  the  contestant  but  64  majority,  while  at  the  election  in  1878 
it  gave  him  112  majority — the  total  vote  cast  in  1880  being  greater  by 
24  votes  than  in  1878,  and  the  names  of  278  known  Republican  electors 
on  the  poll-list,  in  a  total  number  of  447  (Record,  p.  1176) — thereby  in- 
creasing his  majority' in  this  county  to  481,  we  pass  to  the  brief  consid- 
eration of  another  point  in  confirmation  of  the  foregoing  conclusions. 

The  history  of  the  politics  of  Madison  County  shows  that  the  Repub- 
lican majority  for  Representative  in  Congress  for  the  three  elections  prior 
to  1880  was  as  foUpws,  to  wit : 

Votes. 

In  1874  Republican  nuijority  was 469 

In  1876  Republican  majority  was 439 

In  1878  Republican  majority  was 453 

General  average  majority  was 453 

The  excess  of  the  total  vote  of  the  county  over  that  of  1876,  when  the 
Democratic  candidates  polled  the  largest  vote  that  party  ever  received, 
is  245,  and  the  testimony  establishes  the  fact  that  this  excess  was  the 
lesult  of  natural  increase,  and  the  greater  portion  of  it  was  polled  in 
Republican  districts.  (Testimony  of  Dennis  Eagan,  Record,  p.  1203.) 
Should  this  excess  be  distributed  j?»*o  rata,  according  to  the  vote  of  1876, 


BISBEE,    JR  ,    VS.    FINLEY.  187 

when  tlie  parties  to  this  controversy  were  caudidat€'=j,  the  contestant's 
majority  would  be  about  180  votes. 

Again,  it  is  in  evidence  that  in  this  county,  as  generally  throughout 
the  State,  a  separate  election  was  held  by  the  Democratic  electors  to 
uoniinate  ten  county  oflQcers  for  appointment  by  the  Democratic  caudi- 
date  for  governor  in  case  he  was  elected.  This  election  was  held,  not 
in  pursuance  of  any  law  of  the  State,  as  under  the  State  constitution 
county  officers  are  appointed  by  the  governor,  but  under  the  following 
resolution  of  the  Democratic  State  Convention  : 

Rexob-ed,  That  this  convention  recommend  the  appointment  of  such  county  officers 
as  may  be  chosen  and  elected  by  the  conservative  Democratic  voters  assembled  in  their 
several  counries  on  the  day  of  the  general  election;  such  election  to  be  by  ballot  and 
to  be  conducted  in  such  a  manner  as  to  obtain  a  full  and  free  expression  of  the  wishes 
of  the  voters  who  act  with  us  in  supporting  the  nominees  of  this  convention. 

The  Democratic  State  or  Congressional  committee  had  the  manage- 
lueut  of  this  separate  election  and  issued,  the  following  instructions,  to 
wit : 

All  persons  who  desire  to  vote  for  county  officers  must  show  their  ticket  to  the  precinct 
committees  before  they  rote.  No  person  who  votes  for  Conover,  Ledwith,  or  Bisbee  can 
vote  for  county  officera.     (Record,  p.  1058.) 

Tills  separate  election,  we  infer,  was  to  remove  in  some  degree  the 
objections  to  the  exercise  by  the  governor  of  such  large  ap])ointiug 
power,  and  the  rivalry  among  so  many  candidates  would  assuredly  bring 
to  the  polls  the  full  vote  of  the  party. 

The  evidence  shows  that  the  total  Democratic  vote  cast  at  this  infor- 
mal election  was  1,175,  and  that  the  highest  Democratic  vote  ever  be- 
fore cast  in  this  count}',  was  1,()S2,  in  the  year  1870,  ichicJt  icm  93  less 
than  cast  at  these  separate  polls  in  1880,  at  ichich  no  Republican  rote  was 
permitted  to  he  cast.  Concede  that  1,175  votes  is  the  full  Democratic 
vote  of  the  county,  and  the  following  result  appears,  to  wit :  The  entire 
number  of  names  of  electors  on  all  the  poll-lists  in  1880  was  2,818.  De- 
duct as  full  vote  of  contestee,  1,175;  vote  for  contestant  would  then  be 
1.C7.3;  contestant's  majority,  198. 

On  this  branch  of  the  case  reference  is  made  to  the  testimony  of  Eagan 
(Record,  p.  1203).  Nevertheless,  the  committee,  with  a  view  of  remov- 
ing all  doubt,  concluded  to  count  only  for  the  contestant  the  foregoing 
majority  of  130,  the  number  which  the  evidence  conclusively  establishes 
the  contestant  entitled  to  beyond  cavil  or  dispute. 

Correcting  the  vote,  according  to  our  conclusion,  upon  the  issue  already 
decided,  the  contestant's  election  is  apparent,  even  conceding  that  all 
the  votes  at  the  Xewuansville  poll  and  Parker's  Store  poll,  Alachua 
County,  not  proven  for  him  aliunde  the  return,  should  be  counted  for 
contestee.  '         • 

In  other  words,  correcting  the  frauds  by  counting  the  votes  as  they 
wei  e  cast,  in  Alachua  and  Madison  Counties ;  adding  votes  for  contest- 
ant tendered  for  him  and  illegally  refused,  and  deducting  illegal  votes 
cast  for  contestee,  the  election  of  contestant  is  established,  as  will  ap- 
pear in  the  tabular  statements  at  the  close  of  our  report. 

Other  questions  have  been  presented  by  contestant,  which  we  will 
now  state  and  dispose  of. 

BKEVARD  COUNTY. 

The  laws  of  Florida  require  a  registration  of  the  electors,  and  the 
constitution  of  that  State  commands ''  that  no  person  not  duly  registered 
according  to  law  shall  be  allowed  to  vote." 


188  DIGEST    OF, -ELECTION    CASES. 

The  law  requires  one  general  registration  book  for  each  county,  and 
also  another  registration  book  for  each  election  district  into  which  the 
county  is  divided ;  and  these  district  books  are  the  original  books  of 
registration,  in  which  each  voter  must  write  his  name,  or  have  it  writ- 
ten by  the  registrating  officers,  and  take  the  oath  of  allegiance  to  the 
State  and  to  the  United  States,  which  oath  is  to  be  printed  or  written 
at  the  commencement  of  the  book.  Opposite  the  voter's  name  must 
appear,  in  proper  order,  the  number  of  the  election  district  i^i  which  the 
voter  resides,  and  the  day.  month,  and  year  of  his  registration. 

The  law  provides  for  copying  by  the  clerk  of  the  circuit  court  the 
names  on  the  district  books  into  the  general  registration  book.  This 
clerk  is  the  registrating  officer  for  the  election  district  in  which  his 
office  is  located,  and  he  appoints  a  registrating  officer  for  each  of  the 
election  districts  of  the  county. 

The  registration  must  be  closed  ten  days  before  the  day  of  election, 
and  a  certified  copy  of  the  district  book  is  to  be  delivered  by  the  sheriff 
to  the  election  officers,  which  copy  is  the  legal  evidence  to  the  officers 
of  the  election  of  the  fact  of  registration,  and  of  the  qualification  of  the 
electors  whose  names  are  on  such  copy. 

The  contestant  asks  that  the  entire  election  be  set  aside  in  this 
county,  and  that  no  votes  shall  be  counted  tor  either  party,  on  the 
ground  that  the  election  was  held  without  any  registration  in  conform- 
ing to  the  law. 

The  evidence  relied  upon  consists  of  the  testimony  of  one  James  A» 
McCrory,  the  deputy  clerk  of  court,  who  had  charge  of  the  clerk's  office, 
and  who  performed,  as  it  appears,  such  duties  as  were  jierformed,  iu  this 
county  preparatory  to  the  election.     (Record,  pp.  4:03-405.) 

This  deputy  clerk  was  a  Democrat,  and  was  examined  as  a  witness  on 
behalf  of  contestant.  It  is  proven  by  his  testimony  that  no  registration 
books  were  provided  or  used  in  this  county,  and  that  the  only  semblance 
or  pretense  of  registration  of  the  electors  consists  of  "loose  sheets  of 
paper"  containing  the  names  of  citizens,  which  were  brought  into  the 
clerk's  office  by  the  registrating  officers  from  eight  election  districts. 

The  whole  number  of  such  districts  was  twelve,  and  from  the  other 
four  this  deputy  clerk  testifies  that  even  such  lists  of  names  "on  loose 
sheets  of  paper"  were  not  made  and  brought  to  the  clerk's  office.  Mc- 
Crory can  only  name  one  district  from  which  such  irregular  lists  of 
names  were  returned  that  contained  oaths  required  by  the  law  to  be 
taken  and  subscribed  by  the  elector  and  registration  officers.  (Record, 
p.  405.) 

It  has  been  called  to  the  attention  of  your  committee,  that  it  was 
proven  by  the  clerk  of  the  court,  and  other  witnesses,  in  the  contested 
election  case  of  Bisbee  vs.  Hull,  that  there  were  no  registration  books 
provided  or  used  in  this  county  at  the  election  of  1878. 

It  also  appears  that  by  a  statute  of  Florida,  passed  in  1879,  a  consider- 
able portion  of  the  territory  of  the  adjoining  cotinty  of  Volusia,  was  added 
to  this  county,  Brevard,  consequently  it  cannot  be  claimed  that  any  of 
the  citizens  residing  within  this  portion  of  the  county  had  the  right  to 
vote  by  reason  of  any  i^rior  registration.  And  this  new  part  of  the 
county  is  included  in  that  containing  the  eight  election  districts  in  which 
these  lists  of  names  "  on  loose  sheets  of  paper"  were  made  and  delivered. 

The  registration  books,  under  the  laws  of  Florida,  are  public  records, 
and  the  clerk  of  the  court  is  the  legal  custodian  of  them.  This  deputy, 
who  had  charge  of  the  office,  could  not  well  be  ignorant  in  regard  to  the 
subject-matter  of  his  testimony,  and  he  evidently  testified  with  some 


BISBEE,    JR  ,    VS.    FINLEY.  1 89 

Teliictance,  which  may  be  accounted  for  from  the  fact  that  he  was  a 
political  associate  of  coutestee. 

According  to  this  testimony  it  is  manifest  that  the  entire  foundation 
for  a  legal  election  in  this  county  icas  wanting.  As  to  the  four  districts  in 
which  not  even  the  irrej;ular  lists  of  names  '-on  loose  sheets  of  paper" 
were  made,  there  can  be  no  pretense  that  there  was  any  registration  of 
ai.y  kind  whatever.  From  these  four  districts  63  votes  were  returned 
for  contestee,  and  1'-*  for  contestant. 

As  to  the  other  eight  election  districts,  it'can  hardly  be  claimed  that 
"'■  loose  sheets  of  paper"'  are  registration  books,  such  as  the  law  requires. 
They  could  be  manufactured,  abstracted,  and  substituted  at  pleasure, 
with  slight  risk  of  detection. 

To  sustain  this  as  a  legal  registration  would  do  violence  to  the  pro- 
vision of  the  constitution  and  laws  of  Florida,  would  destroy  all  the 
safeguards  against  the  frauds  at  elections  which  registration  laws  are 
intended  to  prevent,  and  would,  we  think,  furnish  greater  facilities  for 
fraud  than  the  absence  of  any  registration  at  all. 

Your  committee  therefore  hold  that  the  election  in  this  county  must 
be  set  aside  as  illegal  and  void. 

The  principle  is  so  well  settled  that  an  election  held  without  registra- 
tion, under  laws  requiring  registration,  is  illegal,  that  the  citation  of 
authorities  is  deemed  unnecessary. 

The  returns  from  this  county  give  the  sitting  member  222  votes,  and 
the  contestant  7-4  votes,  wnich  are  excluded  from  the  count. 

HAMILTON   COUNTY. 

It  is  charged  by  contestant  that  the  result  of  the  election  at  poll  No* 
S  in  this  county  was  aft'ected  by  the  use  of  intoxicating  liquors,  force, 
violence,  and  disorderly  conduct,  resorted  to  by  the  political  friends  of 
the  contestee;  that  the  authority  of  the  United  States  supei-visors  and 
a  deputy  marshal  were  publicly  defied,  and  that  the  officers  of  the  elec- 
tion approved  of  such  action  and  conduct,  and  discriminated  illegally 
and  corruptly  against  the  Republicans  in  the  management  of  the  elec- 
tion and  reception  of  votes. 

Your  committee  find  from  the  evidence  that  these  charges  are  sub- 
stantially sustained,  and  that  the  election  at  this  poll  was  not,  in  any 
just  sense,  a  free  and  fair  election. 

It  is  proven  by  a  number  of  witnesses  that  the  political  supporters  of 
contestee,  in  several  instances,  led  colored  men  to  the  polls  in  a  state 
of  intoxication,  which  they  had  designedly  produced,  and  forced  them 
to  vote  a  Democratic  ticket;  and  that  from  the  efforts  of  Republicans  to 
prevent  such  conduct  and  to  secure  the  right  of  each  elector  to  vote  a 
free  ballot,  violent  quarrels  ensued  in  front  of  the  polling- window,  and 
that  the  immediate  vicinity  of  the  polls  was  a  scene  of  disorder,  law- 
lessness, and  threats  of  personal  violence,  continuing  a  considerable 
portion  of  the  day,  and  that  by  such  means  the  result  of  the  election  at 
this  poll  was  effected. 

Reference  is  made  to  the  testimony  of  John  W.  Rackley,  an  Inde- 
pendent in  politics,  and  late  clerk  of  the  Florida  senate  (Record,  p.  1183) ; 
of  E.  J.  Roulesson,  United  States  deputy  marshal  (Record,  p.  1180) ;  B.  E. 
Roulesson  (Record, p.  1204) ;  Isham  Guillion  (Record,  p.  1193);  and  Cato 
Williams  (Record,  p.  1208). 

Williams  was  one  of  the  electors  who  was  made  to  vote  a  Democratic 
ballot  while  intoxicated,  and  he  certifies  that  he  voted  such  ticket,  con- 
trary to  his  intentions,  and  was  so  drunk  that  one  of  his  Democratic 
neighbors  had  to  carry  him  home  on  a  mule. 


190  DIGEST    OF- ELECTION    CASES. 

Guilliou  jrives  the  names  of  certain  voters  whose,  votes  were  obtained 
for  the  Democratic  candidates  by  the  tlireat  of  depriving  them  of  land 
they  had  courracted  for  if  they  voted  otherwise. 

The  deputy  marshal  testifies  that  at  about  two  hours  before  sunset 
there  was  not  a  dozen  sober  men  at  the  polls. 

It  is  proven  that  the  officer  of  the  election  who  received  the  ballots 
sat  in  the  window  of  the  polls  with  a  revolver  exposed  upon  his  person ; 
that  the  officers  allowed  one  man  to  vote  a  Democratic  ticket  who  had 
been  convicted  of  an  infamous  crime,  and  refused  the  vote  of  a  Repub- 
lican elector  who  had  been  xjharged  with  such  a  crime,  but  had  never 
even  been  tried  for  it,  though  he  offered  to  take  the  oath  of  a  challenged 
voter  ;  and  that  these  officers  allowed  a  Democratic  elector  to  vote  in 
the  jjolling-room  unobserved  after  he  had  been  challenged  and  refused 
to  take  the  oath  of  a  challenged  voter  and  vote  publicly.  The  deputy 
marshal  was  compelled  to  abandon  any  effort  to  preserve  order  through 
fear  of  his  life,  and  the  officers  of  the  election  made  no  effort  to  preserve 
the  peace  and  an  orderly  conduct  of  the  election,  which  they  had  sworn 
to  do,  but  acquiesced  in  all  that  occurred.  Eackly  and  the  two  Roule^ 
sons  testify  that  in  their  judgment,  by  the  methods  described,  the  con- 
testant lost  from  20  to  30  votes  and  the  sitting  member  gained  from  20 
to  30  votes.  It  is  also  proven  that  printed  posters  were  placed  upon  the 
polling-room  and  at  other  places  near  the  polls,  by  the  Democratic 
United  States  supervisors  and  other  persons,  warning  against  any  inter- 
ference by  the  Federal  authorities. 

The  whole  conduct  of  election  officers  may,  though  actual  fraud  be  not  apparent, 
amount  to  such  gross  and  culpable  negligence,  such  a  disregard  of  their  official  duties, 
as  to  render  their  doings  unintelligible  or  unworthy  of  credence,  and  their  actions 
entirely  unreliable  for  any  purpose.     (McCrary,  sec.  303.) 

If  it  clearly  appears  that  the  fairness,  purity,  or  freedom  of  an  election  has  been 
materially  interfered  with  by  acts  of  violence,  intimidation,  &c.,  the  election  should 
be  set  aside.     {Id.,  sec.  416.) 

We  are  of  the  opinion  that  the  election  at  this  poll  falls  under  the 
condemnation  of  the  doctrines  stated  by  McCrary  in  the  section  quoted, 
and  that  the  election  should  be  set  aside.  .  The  vote  returned  from  this 
poll  is,  for  Finley,  136,  and  for  Bisbee,  68,  which  must  be  deducted  from 
the  official  canvass. 

GRANGE  COUNTY. 

The  paper  purporting  to  be  a  return  from  the  poll  in  this  county 
known  as  Fort  Christmas  is  not  signed  by  the  officers  of  the  election, 
as  appears  from  a  certified  copy  thereof  in  evidence,  and  it  is  proven  that 
these  votes  stated  in  this  paper  were  included  in  the  official  returns 
from  the  county.     (Record,  pp.  1129  and  76.) 

Such  a  return  is  illegal,  and.  no  votes  stated  therein  can  be  counted. 
(McCrary  on  Elections,  sees.  174  and  274.) 

This  document  states  that  Finley  received  30  votes  and  Bisbee  3  votes, 
which  we  deduct  from  the  count. 

NASSAU    COUNTY. 

It  is  averred  in  the  notice  of  contestant  that  an  officer  of  the  election 
of  Odum's  Branch  poll  in  this  county  committed  the  fraud  of  substi- 
tuting Democratic  for  Republican  ballots.  •*  ;-.i.» 

It  is  proven  by. three  witnesses,  sworn  on  behalf  of  contestant,  that 
one  of  the  officers  of  election  placed  a  Democratic  ballot  in  the  ballot- 


BISBEE,  JR.,    VS.    FINLEY.  191 

box,  not  delivered  to  him  by  an  elector,  in  lieu  of  a  Eepublican  ballot 
that  was  delivered  to  him  by  an  elector.  The  sitting  member  adduced 
no  testimony  controverting  that  of  these  three  witnesses. 

It  is  claimed  that  this  return  should  be  excluded,  on  the  principle  that 
if  an  officer  of  election  is  clearly  shown  to  be  guilty  of  deliberate  fraud 
in  a  single  instance,  all  his  acts  are  tainted  with  dishonesty,  and   the 
prima  ^<7e/e  character  of  the  return,  as  evidence,  is  destroyed.  (McCrary 
sees.  441,  442,  303.) 

The  application  of  this  principle  would  reject  this  return,  but  as  the 
testimony  establishes  that  this  act  of  changing  oue  ballot  was  done 
soon  after  the  polls  opened,  and  was  not  afterwards  repeated,  and  th& 
total  vote  was  small,  we  have  concluded  to  retain  the  return,  and  cor- 
rect it  by  deducting  one  vote  from  Finley's  vote  and  adding  oue  vote 
to  Bisbee's  vote. 

MARION    COUNTY. 

Objection  is  made  to  counting  the  votes  stated  in  the  Moss  Bluff  re- 
turn ill  this  county.  The  proof  relied  upon  by  contestant  to  exclude^ 
this  return  consists  of  the  testimony  of  three  witnesses. 

The  substance  of  all  their  testimony  is  that  the  supporters  of  the  sit- 
ting member  voted  ballots  which  they  took  from  a  table  in  the  polling- 
room  ;  that  during  the  day  it  was  discovered  hj  two  of  these  witnesses- 
that  contestee's  name  was  not  on  the  ballots  on  this  table.  One  witness,. 
Heath  (Record,  pp.  578,  519),  swears  positively  that  he  examined  25  to 
30  of  such  ballots  on  the  table  from  w  hich  the  Democratic  electors  took 
their  ballots,  and  that  contestee's  name  was  not  on  them.  Another 
witness,  Sellers  (Record,  pp,  516,  518),  swears  that  he  was  present  when 
the  names  of  the  candidates  on  the  ballots  voted  were  read  to  be  tallied, 
and  that  contestee's  name  was  not  called  out;  at  least  if  it  was  the  wit- 
ness did  not  hear  of  it. 

All  the  officers  of  the  election  were  political  friends  of  the  contestee, 
and  it  is  proven  that  as  the  names  of  the  candidates  for  each  office  upon 
a  ballot  were  announced  by  one  of  the  officers  he  handed  the  ballot  ta 
another  officer  of  the  election,  who  immediately  tore  it  up  and  destroyed 
it,  instead  of  laying  the  ballots  aside  until  all  of  them  had  beeu  can- 
vassed. 

The  contestee  has  not  attempted  to  explain  or  disprove  the  testimony- 
taken  by  contestant,  and  for  this  reason  it  is  urged  that  he  could  not. 

It  is  true  that  the  contestee  could  easily  have  proven  that  his  name 
was  upon  these  ballots  voted  by  his  supporters,  if  such'  were  the  fact, 
and  by  not  doing  so  he  has  left  the  impression  to  operate  that  he  could 
not,  but  the  voters  may  have  written  contestee's  name  on  their  ballots, 
and  there  is  no  evidence  that  they  did  not,  except  the  testimony  tend- 
ing to  show  that  his  name  was  not  read  when  the  votes  were  canvassed. 

The  elector  who  voted  for  the  other  Democratic  candidates  doubtless 
intended  to  vote  for  the  contestee,  and  as  the  witness  for  contestant  is 
not  entirely  positive  that  the  name  of  contestee  was  not  read  from  the 
ballots  when  they  were  canvassed,  we  have  concluded  to  count  the  vote 
at  this  poll  as  returned. 

BKADFOKD  COUNTY. 

It  is  claimed  by  contestant  that  at  the  four  polls  in  this  county, 
known  as  :N^os.  2,  3,  5,  and  7,  76  persons  voted  who  were  not  registered 
voters. 

The  evidence  relied  upon  is  a  certified  copy  of  the  registration  book 


102  DIGEST    OF    ELECTION    CASES. 

of  the  county,  dated  Ifovember  29,  1880,  a  certified  copy  of  the  list  of 
names  stricken  from  such  book,  at  the  annual  revision  thereof  by  the 
county  commissioner,  in  the  year  A.  D,  1878,  and  1880,  and  also  a  cer- 
tified cop3"  of  such  book,  dated  March  15,  1877,  purporting  to  be  a  copy 
of  all  the  names  registered  on  that  date,  from  1868,  when  the  registra- 
tion laws  Were  first  passed.  (This  last  copy  is  in  the  record  of  the  case 
of  Finley  vs.  Bisbee,  Forty-fifth  Congress,  page  758,  offered  in  evidence 
at  the  argument  of  this  case.) 

The  total  number  of  votes  returned  from  these  four  polls  is  590,  of 
which  but  47  are  returned  for  contestant.  The  poll-lists  are  in  evidence, 
showing  that  the  76  persons  voted,  and  if  their  names  are  not  on  the 
said  certified  copies  of  the  registration  books  and  lists  of  names  stricken 
from  such  books,  there  being  no  evidence  to  the  contrary,  these  votes 
are  illegal.  If  deducted  pro  rata,  according  to  the  rule  applied,  where- 
as in  this  case  it  is  not  shown  for  whom  such  votes  were  cast,  70  should 
be  deducted  from  contestee's  vote,  and  5  from  contestant's,  one  vote 
being  lost  in  fractions  by  this  method  of  deduction. 

As  the  decision  of  this  question  will  not  affect  the  final  result  on  the 
merits  of  the  case,  your  committee  have  not  performed  the  work  of  ex- 
amining the  copies  of  the  books  and  lists  of  names  to  ascertain  whether 
or  not  the  76  ])ersons,  or  any  of  them,  are  registered,  and  therefore  have 
not  deducted  the  votes  of  these  persons  in  the  tabular  statement  of  cor- 
rections of  the  official  vote. 

According  to  the  conclusions  to  which  we  have  arrived,  the  official 
returns  must  be  corrected  as  follows : 

Finley.  Bisbee. 

The  total  official  vote  returned  is 13, 430  12, 427 

Add  to  contestant's  vote  the  votes  tendered  and  rejected  (Exhibit  A) 269 

Deduct  from  contestee's  votes  the  illegal  vote  cast  for  him  (Exhib- 
its B  and  C) 96        

Deduct  from  contestee's  vote  at  the  Arredonda  poll,  172 ;  Newnans- 

villepoll,  146;  Parker's  Store,  155 473         

And  add  to  contestant's  vote  the  votes  proven  at  said  polls  in  excess 
of  his  returned  vote,  Arredonda,  191 ;  Newnausville,  18 ;  Parker's 

Store,  28 237 

Madison  County,  deduct  from  contestee 163        

And  add  to  contestant 165 

Nassau  County,  Od win's  Branch  poll,  deduct  from  contestee 1         

And  add  to  contestant 1 

Total  of  above  corrections 733  672 

Which  deducted  and  added  to  the  official  vote  gives  the  following 

result 12,697        13,099 

To  be  still  further  corrected  by  deducting  contestee's  returned  vote 

and  conte8taii.t'8  returned  vote  in  Brevard  County 222  74 

Deduct  returned  vote  at  No,  3  poll,  Hamilton  County 136  68 

.  And  at  Fort  Christmas  poll,  Orange  County  .  .*. 30  3 

Total 388  145 

Which  deducted  from  the  last  stated  result  gives  for  Finley  12,309  ; 
Bisbee,  12,954,  and  a  majority  for  Bisbee  of  645. 

Now  concede  to  contestee  at  the  two  polls  of  Newnansville  and 
Parker's  Store,  Alachua  County,  the  difference  between  the  total  re- 
turned vote  for  Representative  and  the  votes  proven  for  contestant,  and 
255  votes  would  be  deducted  from  Bisbee's  majority,  leaving  him  390 
majority.  And  even  if  the  polls  in  Brevard  County  Xo.  3.  Hamilton 
County,  and  Fort  Christmas  poll.  Orange  County,  were  not  rejected, 
contestant  would  still  have  a  majority  of  147  votes. 

In  any  view  of  the  case  founded  upon  the  law  and  the  evidence,  the 
contestant  has  a  majority  of  the  legal  votes  cast. 


BI8BEE,  JR.,    VS.    FINLEY.  193 

It  ought,  however,  to  be  stated : 

Coutestee  claimed  before  the  committee  that  a  portion  of  contestant's 
evidence  was  taken  aftertlie  expiration  of  the  first  forty  of  the  ninetv  days 
allowed  by  statute  (Eev.  Stat.,  p.  1071)  for  the  taking'^of  testimony,  and 
that  some  of  that  which  was  taken  during  the  ten  days  allowed  for  re- 
buttal was  n5t  strictly  in  rebuttal,  and  that  all  such  should  be  rejected 
and  not  considered  by  the  committee. 

It  appears  that  contestant  has  given  notice  of  the  taking  of  a  large 
number  of  witnesses,  and  proceeded  to  take  them  as  fast  as  he  could, 
but  at  the  expiration  of  the  forty  days,  to  wit,  on  March  15,  he  had  not 
got  through  with  his  list,  and  continued  until  thev  were  finished,  on  the 
16th,  17th,  18th,  19th,  21st,  ^2d,  23d,  25th,  26th,  and  28th  of  March. 
Contestee's  counsel  left  and  would  not  remain  after  the  llth  of  March. 
It  is  claimed,  and  the  record  sustains  it,  that  contestee  had  consumed 
a  great  deal  of  time  unnecessarily  by  his  method  of  dilatory  and  useless 
cross-examination,  probably  with  the  object  of  delaying  the  taking  of 
testimony. 

It  also  appears  that  scenes  of  violence  and  public  disorder  prevented 
contestant's  attorney  from  going  into  some  parts  of  the  district  where 
the  witnesses  lived,  so  that  he  was  thereby  deprived  of  much  of  the  first 
forty  days. 

It  also  appears  that  contestant  did  not  occupy  any  portion  of  the  forty 
days  needed  by  contestee,  and  that  he  was  not  prejudiced  at  all  by 
contestant's  continuing  to  finish  his  witnesses  after  March  15,  for  con- 
testee did  not  begin  to  take  testimony  in  Madison  County  until  the  16th 
of  April  5  did  not  commence  in  Alachua  County  until  the  13th  of  April, 
two  weeks  after  contestant  had  got  through.  He  examined  altogether 
but  fifty  witnesses,  occupying  but  sixteen  days.  Ten  of  these  were  exam- 
ined on  the  question  of  the  popularity  or  unpopularity  of  the  candidates. 
Contestant  offered  to  agree  to  give  his  opponent  all  the  time  he  wanted 
to  answer  the  evidence  objected  to  (record,  p.  1066),  and  urged  him  to 
proceed  to  do  so  if  he  desired,  and  he  obstinately  refused,  although  he 
knew  that  testimony  taken  after  the  expiration  of  ninety  days  on  con- 
sent of  parties  would  be  received,  for  such  had  been  the  case  in  his  con- 
^test  against  J.  S.  Walls.  (House  Mis.  Doc.  ]N^o.  58,  first  session  Forty- 
fourth  Congress.) 

He  knew  of  the  other  facts  stated  and  of  the  illness  of  counsel  which 
lad  delayed  the  taking  of  the  evidence  entirely  within  the  first  forty 
lays.  And  the  committee  think  that  a  fair-minded  man  would  have 
)een  most  likely  to  enter  into  an  agreement  allowing  further  time,  and 
le  must  be  presumed  to  know  the  previous  practice  of  the  Committee 
m  Elections  to  exercise  discretion  in  such  matters. 

It  is  also  evident  that  most  and  probably  all  of  the  evidence  to  which 
le  now  objects  did  not  admit  of  an  answer,  as  his  attempt  to  answer 
)ther  evidence  of  the  same  kind  to  which  he  does  not  object  proved  in- 
effectual. That  taken  during  the  last  ten  days  was  sudi  from  its  nature 
fthat  it  could  not  be  contradicted  or  its  torce  impaired  by  any  counter- 
jvidence. 

It  is  manifest,  therefore,  that  contestee  did  not  suffer  and  was  not  prej- 
[udiced  by  any  delay  or  the  aots  complained  of. 

No  complaint  is  made  or  pretense  set  up  that  the  evidence  was  not 
fairly  talvcu  and  accurately  reported.    He  had  full  opportunity  to  cross- 
examine  if  he  desired  to  do  it,  and  also  to  answer  it  after  the  same  was 
[taken.     But  he  did  not  choose  to  do  so,  and  preferred  to  take  the  risk  of 
[its  being  considered.     After  the  case  was  referred  to  the  committee  and 
H.  Mis.  35 13 


194  DIGEST    OF -ELECTION   CASES. 

printed  he  did  not  appear  or  make  any  motion  to  strike  out  the  evidence 
objected  to,  so  that  it  might  be  supplied  if  the  motion  was  granted,  but 
took  the  objection  for  the  first  time  at  the  argument. 

The  committee  are  clearly  of  the  opinion  that  the  evidence  taken 
after  the  expiration  of  the  forty  days  should  be  received  and  considered^ 
and  they  have  considered  it;  that  the  evidence  taken  in  rebuttal  should 
also  be  considered.  All  of  the  evidence  was  taken  within  the  ninety 
days  allowed  by  statute,  so  that  in  that  respect  the  statute  was  literally 
complied  with,  aad  the  forty  days  allowed  contestee  was  more  than  suf- 
ficient for  his  purposes,  as  he  did  not  begin  until  about  two  weeks  after 
contestant  had  finished,  and  then  occupied  but  sixteen  days,  while  h& 
had  the  offer  of  all  the  more  time  which  he  desired. 

It  is  manifest  that  contestee  did  not  believe  he  could  answer  the  evi- 
dence and,  in  the  spirit  manifested  by  his  cross-examination,  designed 
apparently  to  use  up  the  time,  so  as  to  get  beyond  the  forty  days,  and 
by  leaving  when  the  forty  days  were  up,  and  when  he  knew  contestant 
was  going  on  to  finish  his  list  of  witnesses,  he  was  seeking  some  tech- 
nical advantage  if  he  could  get  it.  The  tegtimony  in  rebuttal,  also  taken 
within  the  ten  days,  appears  to  have  been  proper  and  competent,  and 
should  be,  and  has  been,  considered.  The  course  of  the  committee  seem* 
fully  justified  by  good  precedents. 

^0  statute  can  tie  the  House  down  to  any  rules  of  procedure. 

Its  provisions  are  directory,  constituting  6\\\y  convenient  rules  of 
practice,  and  the  House  is  at  liberty,  in  its  discretion,  to  determine  that 
the  ends  of  justice  require  a  different  course.  (McCrary,  pp.  353,  358, 
359.) 

In  1st  Bartlett,  Eep.,  223,  224,  a  Democratic  committee  held  that  if 
either  party  desired  further  time  to  take  testimony  after  the  time  had 
expired,  it  was  his  duty  to  give  notice  to  his  opponent  and  proceed  and 
take  it  and  present  it  to  the  committee,  which  would,  on  good  reasons^ 
being  shown,  receive  and  consider  it. 

So,  too,  in  regard  to  rebutting  evidence ;  that  rests  in  the  discretion 
of  a  court  always,  even  if  not  strictly  in  rebuttal.  (Keed  vs.  Kneeas, 
Brightley's  Election  Cases,  416;  Eichardson  vs.  Stewart,  4  Birney,  197.) 

Evidence  taken  seems  to  have  been  in  rebuttal,  and  was  such  as  not 
to  admit  of  being  answered  or  controverted,  and  the  precise  order  of 
same  is  immaterial. 

Votes  proved  to  have  been  cast  illegally  for  contestee,  by  evidence 
taken  during  the  last  ten  days :  15  in  Duval,  12  in  Putnam,  12  in  Saint 
John's ;  39  in  all. 

The  whole  number  of  votes  tendered  and  refused,  and  those  for  con- 
testee proved  to  be  illegal,  involved  in  all  the  evidence  taken  during  last 
ten  days,  is  precisely  178. 

All  the  rest  is  in  Brevard,  showing  no  registration  ;  and  No.  3,  Ham- 
ilton poll,  assailed  for  fraud  and  illegality. 

If  the  178  are  cast  out  of  the  majority  of  442,  this  would  still  leave 
264.  So  the  objected  evidence,  if  rejected,  would  not  change  the  result 
in  favor  of  contestant. 

Your  committee  therefore  recommend  the  adoption  of  the  following 
resolutions : 

Resolved,  That  Jesse  J.  Finley  was  not  elected  as  a  Eepresentative  to 
the  Forty-seventh  Congress  from  the  second  Congressional  district  of 
Florida,  and  is  not  entitled  to  the  seat. 

Resolved  J  That  Horatio  Bisbee,  jr.,  was  duly  elected  as  a  Eepresenta- 


BISBEE,    JR.,    VS.    FIXLEY. 


195 


tive  from  the  second  Congressional  district  of  Florida  to  the  Forty - 
seventh  Congress,  and  is  entitled  to  his  seat  as  such. 

A.  A.  EANNEY.  WM.  G.'  THOMPSON 

W.  H.  CALKINS.  GEO.  C.  HAZELTON. 

J.  T.  WAIT.  AUGUSTUS  H.  PETTIBONE. 

F.  JACOBS,  Jr.  S.  H.  MILLEK. 


Exhibit  A. 

List  of  names  of  electors  tvhose  votes  were  tendered  atid  refused,  citing  page  of  record  where 

testimony  tciU  be  found, 

MARION  COUNTY. 


No. 


Names. 


1  Anderson,  Charles 

2  Barbor,  Samuel 

3  Buce  or  Keese.  Harley 

4  Bennett,  Moses 

5  Bumey.  Ned 
c.  Borco,  Paul,  jr 

7  I  Bovd.  Joseph 

8  I  Bright,  Jesse 

9  Brooks,  Samuel 

10  c.  Bostwick,  George 

11  Brown,  Amos 

12  Calvin,  Alex 

13  e.  Carlisle,  William 

14  Carroll,  Alex 

15  Caston,  David 

16  '  *Colding,  Frank 

17  !  *Colding.  Frand 

18  Coleman.  Robert 

19  I  Contee,  Eliaa 

20  I  Coy,  Lon 

21  i  Currie,  Asa 

22  I  Dart,Budd... 

23  1  Davis,  Daniel 

24  Davis,  Jockey 

25  f  c.  Davis,  Owen 

26  Davi.s,  Simon 

27  Davis.  "\Villiam 

28  !  e.  Dickerson,  Willis 

29  '  Douglass.  Henry 
oO  I  Donglass,  Charles 

31  Elkins,  Manuel 

32  ]  Ellis,  Joseph . 

33  Evans,  Harry 

34  Evans,  Joshua 

35  Evans,  Ranee 

36  Evans,  Williams 

37  Finley,  John 

38  Finlev,  Jonas 

39  Foster,  Chailes 

40  Foster,  Moses 

41  Frazier,  Aaron 

42  Frazier,  Isiah 

43  Furgersou.  Larry 

44  Galloway,  Prince 

45  Gray.  John 

46  Gaskins.  Edmund 

47  Gaskins,  Robert 

48  Gaskins,  Thomas 

49  '  c.  Gibson.  Jesse 
')0  I  c.  Gilliard,  Jack 
■'1  I  Gray.  John 
'i2  I  Green.  Allen 
■'3  ;  Green,  David 
."'4  '  Green.  Benjamin 

55  :  Hamilton.  Carolina 

56  Henderson.  Jack 

57  Harvey.  James  S 

58  Harris,  Wash 
■'9     Jack.son,  Andrew 
00     Jackson,  Calhoun 
«]     Jackson.  David 
62     Jack.'ion,  Kichard 


427-453 
473 
427 
483 
44(1 
443 
440 
453 


196 


DIGEST    OF    ELECTION    CASES. 


Exhibit  A — Continued. 
MARION  COUNTY. 


Names. 


Jacobs,  Jack 

James,  George 

c.  Jones,  Perry 

c.  Jones,  Philip 

Jones,  Raymond 

Johnson,  William... 

Kennedy,  Henry 

c.  Leman,  Harry 

Leonard,  Charles 

Lewis,  Frank 

Lewis,  Francis 

Lewis,  Henry 

Lewis,  James 

Ladson,  Loudon 

Mason,  Olmstead  — 
McCallum,  Wash... 
McCradle,  Johnson. 

McGee,  Lewis 

Menchau,  A.J 

Miller,  Wiley 

Milton,  Aaron 

Mitchell,  Joseph 

Mitchell,  Martin  — 

Mitchell,  Simon 

Milton,  Smith , 

Owens,  Harry 

Palmer,  Stephen  — 
c.  *  Plair,  Robert — 

*  Plair,  Robei  t 

Parks,  Louis 

Pristes,  Jasper 

Purvis,  Green 

Rawls,  Calamus 

Reddington,  Lewis  . 

Rivtrs,  Charles 

Roberts,  Samuel 

Roberts.  Wash 

Robinson,  Dan 

Robinson,  Wash  — 

Riley,  WilUam 

Roberts,  Alex , 

Rutland,  Thomas.. 
Rutledge,  Thomas. 

Sams.  Charles 

Scofleld,  Daniel  C 

Scarvel,  AVary 

Scolt,  Frank 

Small,  Peter 

Smith,  Louis 


Shaw,  Peter 

Stark,  Wyatt 

Stoggers.  Henry 

Swain,  Thomas 

Taylor,  Samuel 

Terry,  Pleasant 

Thomas,  Gabriel 

Thompson,  Burrell... 

Tillis,  Robert 

Turner,  Robert 

Tyson,  WiUiam 

Vancross,  Neptune... 

Ward,  Perry 

e.  Washington,  Cuflfy. 
Washington,  George.. 

Weathers,  Sam| 

Williams,  George 

Williams,  John 

Williams,  Solomon 

Williams,  Thomas 

Williams,  W«de 

William.-i,  William 

Willianl,  .Jack 

Wilson,  Kphiiam 

Wilson,  George ., 

Wright,  Richard 

Young,  Ira 


Affidavit  in: 
record.      : 


Voting  precinct. 


Testimony  in 
record. 


Page. 


657 
634 

568 


60U 
648 
658 


594 

585 
610 


624 
612 

592 
640 


583 


572 
546 
586 


602 
621 
642 


646 
621 


633 
603 


587 
609 
611 
613 


596 


641 
575 
581 


647 
547 


579 
584 
631 


do 

do 

Cotton  Plant. 

No.2 


609 
628 
626 


577 
591 
629 


Flemington.. 

Millwood 

Cotton  Plant. 
Shady  Grove . 

Millwood 

Cotton  Plant. 
Flemington . . 

Lake  Wier 

No.2 ,.. 

Millwood 

Flemington  . . , 
Cotton  Plant. , 

Millwood 

do 

Cotton  Plant. 

No.2 

Cotton  Plant. 

No.2 

Cotton  Plant. 

Millwood 

Flemington  . . 

Millwood 

.....  do 

No.2 

Millwood 

do 

do 

do ■ 

Flemington . . 

Millwood 

Cotton  Plant. 
Flemington  . . 
do 


do 

do 

No.l 

Cotton  Plant. 

Millwood 

do 

do _ 

do 

Flemington . . 

Millwood 

do 


No.2. 


Cotton  Plant. 

Millwood 

Cotton  Plant. 

do.   

Millwood 

do 

Lake  Wier 

Millwood 

No.2 

Millwood 

do 

do 

do 

No.2 

Flemington.., 

Millwood 

do 

Cotton  Plant. 

do 

do 

do 

Millwood 

Cotton  Plant. 
Flemington  . . 

Millwood 

do 

do 


Page. 

in 

427-473 

497-494 

410-411 

412-415 

484 

467 

501 

418 

473 

499 


506 

410-411 

442 

483-484 

495-501 

447 

435 

500 

435 

501 

411-412 

494 

436 

483 

427-4.50 

476 

534 


466 
465 
481 

47  bbk. 

494-501 
479 
481 
483 
483 


497 
427 
440 
464 
475 
483 
456 
442 

533-410 

411-412 
501 

427-445 
501 
501 
455 
427 
507 

427,  560 
422 
471 

427,  437 
461 
472 
414 

486-487 

427-456 


501 

436 

501 

4»6 

494 

494 

44^2 

42T7 

446 


BISBEE,    JR.,    VS.    FINLEY. 

Exhibit  A— Continued. 
ORANGE  COUNTY. 


197 


No. 


Amos,  George , 

Amos,  Henry 

Berry,  Joseph 

Bowen,  Samuel 

Calvin,  Isaac 

Cooper,  Joseph. 

English,  Kandall 

Haitly,J.W 

H  arper,  Daniel 

Hill.Nelson 

Humphreys,  "Wyatt 

Johnson,  George  W... 

Jones,  "William 

Madison,  James , 

McFadden,  Prince 

McKnight,  Solomon 

McKinney,  Alexander 

Owens,  Samiiel 

Reeves,  Thomas 

Reynolds,  W.  E , 

Robertson,  Wm-W 

Robinson,  Marshfill  ... 

Robinson,  Riley „ 

Sheiman,  Allen , 

Single,  Charles 

Shodrick,  Adam 

Smith,  Reuben 

Stevenson,  Isaac  S 

Tillman,  Austin 

Walker,  Dick 

"Williams,  George 


Record. 


Page. 
749 
754 
752 
759 
763 
755 
763 
748 
751 
760 
753 
750 
757 
756 
753 
750 
764 
754 
763 
759 
763 
758 

754-760 
757 
758 
T56 
763 
761 
749 
751 

752-753 


Re^stra- 
tion. 


1,041 
1,041 


1,044 


1,044 


1,044 
1,046 


1,047 
'i,'647 


1,048 
1,049 


1,048 
'i,'049' 
'1,656 


Remarks. 


Registration  sworn  to. 

Do. 

Do. 

Do. 
Arrested  at  polls. 

Registration  sworn  to. 

Registration  sworn  to. 
Do. 

Registration  sworn  to 


Registration  sworn  to. 
Do. 
Do. 
Do. 

Registration  sworn  to. 

Registration  sworn  to. 
Do. 


Registration  sworn  to. 
Registration  sworn  to. 
Registration  sworn  to. 


PUTNAM  COUNTY. 


Calvin,  R."W... 
Jefferson,  John 


825-826 
830 


Registration  sworn  to. 
Do. 


VOLUSIA  COUNTY. 


Hunter,  "William . . , 
Johnson,  Alfred... 

Roe,  Alfred 

Telfair.  Mack , 

"Wellsburg,  George 


835 
835 
833 
834 
833 


Registration  sworn  to. 
Do. 
Do. 
Do. 
Do. 


COLUMBIA  COUNTY. 


1 

Brown,  James 

846 
846 
845 
843 

Registration  sworn  to. 

? 

^Do. 

3 

Do. 

4 

Do. 

SAINT  JOHN'S  COUNTY. 


Fowler,  Charles. 
Heifer,  "William. 


Registration  sworn  to. 


NASSAU  COUNTY. 


Registration  sworn  to.  Yidt  affi- 
davit, ballot  attached.  Record,, 
page  812. 


198 


DIGEST    OF.  ELECTION    CASES. 
Exhibit  A — Coutinued. 

ALACHUA  COUNTY. 


No. 


Record. 


Eegistra- 
tion. 


Eemarks. 


Parker's  Store  poll. 


Page. 


10 


Colbert,  Samuel  .. 
McGinnia,  Tony  .. 
Mulberry,  Joseph 
Roberts,  David  .. 
Wright,  Richard  . 


Archer  poll. 


Berrahan,  Nero 
Doby,  Richard. . 

Jones,  Ed 

Pay  ton,  Israel . . 
Taylor,  Peter  . . 


347 
370 
364 
367 
346 


314 
316 
317 
316 
315 


Waldo  poll. 
Name  not  given 


HAMILTON  COUNTY. 


>  Names  not  given 


Registration  sworn  to. 

Do. 

Do. 

Do. 
Registration  sworn  to,  355. 


Registration  sworn  to. 
Do. 
Do. 
Do. 
Do. 


Vote  cast  on  ballot.  Finley's  name 
erased,  and  Bisbee's  name  writ- 
ten. Rejected  by  officers.  (Rec- 
ord, page  292,  292.) 


C  Two  legal  votes  cast  not  counted. 
{     (See  Record,  page  840.) 


List  of  83  electorswhose  votes  were  tenderedand  not  received  at  Live  Oak  poll.     {Record,  794. ) 

(Copy  of  registration  book,  record,  page  789.) 

STJWANEE  COUNTY. 


No. 


Names. 


No.  on  reg- 
istration 
book. 


Remarks. 


Archibol,  Henry.. 

Austin,  Jerry 

Brown,  Milton 

Bryant,  Amos 

Burk,  Andrew 

Camel,  Jarvis 

Carlisle,  Charles.. 
Carruthers,  Elijah 
Can-uthers,  James 
Coleman,  Henry . . 
Comer,  Anderson. 

Coney,  Noah 

Covington,  J.  T  . . 

Bright,  Daniel 

Davis,  Jasper 

Davis,  Jesse 

Davis,  Thomas 

Devine,  Jacob 

Emmons,  Alonzo.. 
Evans.  William... 

Famell,  Henry 

Field.s,  Lewis 

Fields,  John 

Fields,  Philip 

Fields,  Thomas... 
Figgs,  Benjamin.. 

Frazer,  Lee  

Goodman,  Nat 

Griffin,  Solomon  . . 

Grimes,  Adam 

Grimes,  Thomas... 
Henderson.  Lewis 
Herring,  Horace... 

Holmes,  John 

Holmes,  Phillip. .. 


29 

28 

37 

40 

41 

127 

106 

112 

128 

110 

108 

130 

117 

151 

157 

158 


156 
164 
163 
189 
184 
194 
166 
187 
165 
193 
196 
205 
293 
198 
233 
240 
235 
243 


See  name,  record,  772. 
See  record,  page  794. 

See  record,  page  786. 

See  record,  page  781. 

See  record,  page  785. 
Swears  to  registration,  774. 

See  record,  page  786. 


See  name,  record,  page  768. 
See  record,  page  776. 

See  record,  page  781.. 

See  record,  page  7P4. 


BISBEE,    JR.,    VS.    FINLEY. 
SuwANEE  County — Continued. 


199 


Xo. 


36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
€1 
62 
«3 
€4 
«5 
«6 
67 
68 
69 
70 
71 
72 
73 
74 


77 
78 
79 
«0 
SI 
«2 
83 


K"ame3. 


Homer,  Henry 

Hooker,  Warren 

Jackson,  Benjamin  .. 

Jackson,  Peter 

Johnson,  M.J 

Johnson,  Robert 

Jones,  Andrew 

Jones,  E.  J , 

King,  "Vernal 

Lambert,  Jackson  .... 

Lee.  Dempsey 

Lewis,  Moses , 

McClellen,  Edward.., 

McGee.  Henry 

McLeilly,  Peter 

Marshall,  Gteorge 

Mattair.  Harry 

Mitchell,  John 

Mitchell,  Tony 

Moltou,  Edward 

Moore,  James 

Morjron,  Solomon 

Mosley.  Bryant 

Moton,  Carter 

Miirphy,  Henry 

O'Neal,  John 

Owens,  Tony 

Patterson,  Alexander 

Phillip,  Richard 

Reddick,  Charles 

Roundtree,  Alex 

Sands,  Hays , 

Smith,  Henry 

Stephen.  Chester 

Stewart,  William 

Stickney,  Moses 

Stofford,  Adam 

Swaim,  Primus 

Taylor,  Shode 

Washington,  George. 

White,  James , 

Wiggins,  Lewis , 

Wilson,  JS'ed 

Wilson,  Thomas 

Williams,  Cainer 

Williams,  Lewis  ..... 

Williams,  Samuel 

Williams,  Thomas... 


No.  on  reg- 
istration I 
book. 


Remarks. 


234 
248 
280 
269 
285 
272 
281 
283 
288 
299 
297 
290 
328 
334 


326 


323 
303 
344 
324 
341 
305 
325 
345 
365 
377 
375 
369 
378 
385 
428 
425 
421 
447 
443 
419 
431 
503 
541 
542 
558 
558 
566 
545 
551 
559 
565 


See  record,  page  781. 


See  record,  page  794. 


See  record,  page  775. 

Swears  to  registration,  777. 
See  record,  page  785. 
Swears  to  registration,  785. 

See  record,  page  782. 

See  record,  page  773. 

See  record,  page  768. 
See  record,  page  783. 


See  record,  page  783. 

See  record,  page  777. 
See  record,  page  781. 


See  record,  page  781. 


Exhibit  B. 

List  of  alien-born  persons  who  voted  for  contestee  without  exhibiting  naturalization  papers 
or  declaration  of  intention  to  become  citizens. 


Record 
page. 

Remarks. 

ALACHUA  COUNTY. 

Mollj',J.W 

292, 293 

1213 
1214 
1211 
1212 
1213 
1212 
1212 
1214 
1213 
1211 
1215 
1211 
1210 
1214 

Challenged. 

f 

DUVAL  COUNTY. 

Dolan  D.  A 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

- 

McCallum  J. D     ....                   

Tischler  Phillip                                        

Witschen,  J.  D 

200 


DIGEST    OH    ELECTION   CASES. 
Exhibit  B — Continued. 


Record 
page. 


Remarks. 


MAKION  COUNTY. 


27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

41 J 

42 

43 

44 

45 

46 

47 

48 

49 


Cordero,  John , 

Hattig,  Josh 

Hetherington.  George  , 

Jones,  "Wm.  E 

Johnson,  N.  J 

Madden,  Patrick 

Mverson,  Albert , 

Schmerin,  I 

Shaffer,  Charles 

Stewart,  James 

Ward,  Timothy 


KAS8AU  COUNTY. 


Ellnman,  John  A 

Fitzgerald,  Kobert... 
Fitzpa trick,  Thomas. 

Gage,  Henry 

Glaibee,  Albert 

Leigour,  Joseph 

Lohman,  A.  W 

Lohman,  J.  F 

Hobin,  Henry 

Henderson,  R.  W 

Huot,C.H 

King,  H.  "\V 

Klutz,  Julius 

McWalters,  James. .. 

Mode,  Joseph 

Mooney,  I.  H 

Nickola,  G. 
Paton,  M.  J . 
Peterson,  Henry. 
Rutishanser,  J.  C 
Schnitger,  "William  . 
Steele,  Arthur. 
Stork,  Gustav  , 
Seydel,  A. 


PUTNAM  COUWTT. 


Gresham,  John... 

Ivers,  Jno.  M 

Ivers,  William... 
Lelienthal,  B.  L  . 

Mann,  A.  W 

Meyers,  J.  M 

Miller,  George ... 

Peterman,  H. 

Peterman,  Peter. 

Richmond,  L 

Salowski,  J.  H... 
Shalley,  Thomas. 


SATNT  JOHN'S  COUNTY. 


Alexander,  Thomas... 

Britt,  John 

Clohersy,  David 

Doyle,  jerry 

Fitzpatrick,  Andrew. 

Kelly,  Andrew   

Mci^abon,  John 

Merchant,  August  ... 
Monegeon,  Louis  E . . . 

McNierny,  John 

Stamowski,  J.  H 

Storon,  Herman 


409 

421,  535 

423 

410 

509,  511 

429, 479 

409 

501 

408 

483,486,487 

424 


801 
799 
801 
805 
803 
806 
807 
804 
799 
80S. 
806 
802 
802 
801 
799 
807 
799 
805 
804 
802 
803 
803 
803 


827-831 
818 
820 
819 
821 
819 


Challenged. 


Challenged. 

Do. 
Challenged, 

Do. 


822 
821 


819 


853 
853 
853 
853 
853 
853 
853 
853 
849 
853 
853 
853 


All  numbered  from  62 
to  73,  but  3,  were  chal- 
lenged. 

Testimony  of  D.  M. 
Sappy,  Record,. 853 


BISBEE,    JR.,    VS.    FINLEY.  201 

Exhibit  C. 

Miscellaneous  illegal  votes  cast  for  contestee. 

ALACHUA   COUNTY. 

Page  of  record. 

1.  G.  T.  Thigpen,  non-resident 299-292: 

2.  S.  P.  Phillips,  nou-resident 291 

3.  C.  E.  Whiting,  non-resident 291,29^ 

MARION  COUNTY. 

1.  Reuben  Storke,  convict 513-666- 

2.  G.  W.  Peudervis,  convict 509-571 

3.  R.  V.  Pendervis,  convict 509-571 

4.  John  Geiger,  convict 489 

5.  Luther  Geiger,  convict 489' 

6.  Samuel  Geiger,  convict 489 

7.  R.  T.  Meany,  non-resident 411 

8.  Allen  Thompson,  non-resident 478,479- 

PUTNAM. 

1.  Frederick  Morvick,  unregistered 827,82& 

HAMILTON  COUNTY. 

1.  James  Kite,  non-resident 838,83^ 

2.  Chester  A.  Register,  non-resident 83^ 

3.  Condasy  Oxendine,  non-resident 840 

COLUMBIA  COUNTY. 

1.  Pery  Keene,  min^r 845 

2.  John  Harvey,  non-resident 847, 848 

SAINT   JOHN'S  COUNTY. 

1.  James  M.  Owens,  non-resident 850,851 

2.  T.  W.  Murdock,  non-resident 850,851 

3.  Daniel  Bootright,  non-resident 851 

4.  H.  L.  Ballard 851 

DUVAL  COUNTY. 

1.  Frank  Wright,  voted  twice 1217 

BISBEE  vs.  FINLEY. 
Summary  of  results  on  case  made  iy  contestant,  as  claimed. 

Votea.. 

1.  Votes  tendered  and  rejected  which  should  be  counted  for  contestant,  Ex- 

hibit A ----•*::•■ 

2.  Illegal  votes  east  for  Finley  by  aliens  without  exhibiting  their  naturalization 

papers,  Exhibit  B V"^" 

3.  Illegal  votes  cast  for  Finley  by  persons  disqualified  on  various  grounds,  hx- 

hibitC... -^^ 

ALACHUA    COUNTY. 

4.  Arredonda poll— Reject  this  poll  and  count  for  Bisbee  191  votes  proven  in 

excess  of  returned  vote ^"  V- iV 

Aud  deduct  Finley's  vote,  172  (not  having  proven  any  vote  for  himselt, 
none  can  be  counted) ^ 


202  DIGEST  QF  ELECTION  CASES. 

5.  Newnansville  poll. — Reject  this  poll  and  count  for  Bisbee  18  votes  proven  in 

excess  of  returned  vote 18 

And  deduct  Finley's  returned  vote,  146  (not  having  proven  any  votes 

for  himself,  none  can  be  counted) 146 

•6.  ParJcet-'a  Store  poll. — Reject   this  poll  and  count  for  Bisbee  28  votes  proven 

in  excess  of  returned  vote 28 

And  deduct  Finley's  returned  vote,  155  (not  having  proven  any  vote  for 

himself,  none  can  be  counted) 155 

"7.  Madison    County. — Correct  frauds  by  adding  to  Bisbee's  majority  in  the 

county 371   '.. 

Total  of  above  corrections 1,445 

Deduct  Finley's  apparent  majority 1, 003 

Bisbee's  majority 442 

For  sake  ot  argument,  concede  to  Finley  difference  (255)  between  total  re- 
turned vote  at  the  two  polls  of  Newnansville  and  Parker's  Store,  and  the 
number  proven  for  Bisbee,  which  is  all  that  he  possibly  could  have  proven 
had  he  tried  to  prove  his  vote,  and  add  to  Finley's  votes 255 

Leaves  Bisbee  a  majority  of 187 

True  majority  brought  forward (442) 

OTHER   QUESTIONS. 

S.  Brevard  County. — Set  aside  election  and  deduct  Finley's  majority,  148 148 

9.  Hamilton  County. — Poll  No.   3.      Set  aside  elections  aud  deduct  Finley's 

majority - 68 

10.  Orange  County. — Fort  Christmas  poll.     Return  unsigned  by  oflficers ;  reject 

and  deduct  Finley's  majority 27 

11.  Nassau  County. — Odums  Branch  poll,     Reject  returns  and  deduct  Finley's 

majority 30 

12.  Bradford  County. — Correct  results  by  deducting,  pro  rata,  76  votes  unregis- 

istered  at  polls  Nos.  2,  3,  5,  and  7,  by  which  Finley  loses  70  votes  and  Bis- 
bee 5  (excluding  fractions),  reducing  Finley's  majority 65 

13.  Marion  County. — Reject  return  Moss  Bluff  poll,  and  deduct  Finley's  majority.        59 

Upon  whole  case  Bisbee's  majority  is 839 


Bisbee  vs.  Finley. 

April  21, 1882. — Mr.  Beltzhoover,  from  the  Committee  on  Elections, 
submitted  the  following  as  the 

VIEWS    OF  THE    MINORITY : 

We  respectfully  submit  the  following  statement  of  the  conclusions  at 
'which  we  have  arrived,  and  the  reasons  therefor,  in  the  contested-elec- 
tion case  of  Bisbee  vs.  Finley : 

This  contest  comes  from  the  second  Congressional  district  of  the  State 
of  Florida,  which  is  comi)osed  of  seventeen  counties.  The  election  was 
held  on  i^ovember  2,  1880,  and  the  oflQcial  returns  filed  in  the  ofiice  of 
the  secretary  of  state  show  that  Mr.  Finley  received  13,105  votes  aud 
Mr.  Bisbee  received  11,953.  (See  Record,  1056.)  The  official  majority 
received  by  Mr.  Finley  was  therefore  1,152.  On  January  15,  1881,  Mr. 
Bisbee  served  a  notice  on  Mr.  Finley  contesting  his  election  and  attack- 
ing the  polls  in  all  the  counties  of  the  district  but  one  (Clay).  On  Feb- 
Tuary  3,  1881,  Mr.  Finley  served  his  answer  on  Mr.  Bisbee,  replying  to 
^ud  denying  fully  all  his  alleged  grounds  of  contest.     (See  Record,  1-18.) 


I 


BISBEE,    JR.,    VS.    FINLEY.  2()3 

Ou  the  issues  raised  by  the  notice  and  answer  over  1,200  pages  of  testi- 
mony were  taken. 

For  convenience,  and  the  ready  and  intelligent  application  of  the  law 
to  this  case  as  presented  by  the  record,  it  is  deemed  necessary  to  state 
the  principles  involved  in  its  determination. 

The  constitutional  and  statutory  provisions  relating  to  suffrage  may 
be  divided  into  two  classes  :  .First,'mandatory,  which  define  the  right  of 
suffrage,  and,  secondly,  directory,  which  direct  the  manner  of  its  exer- 
<?ise.  The  former  relate  to  the  siihstance  of  the  right;  the  latter  to 
the  mode  of  its  exercise.  The  former  confer  the  right ;  the  latter  are 
as  so  many  safeguards  to  conserve  it.  The  right  is  derived  from  the 
former  and  its  exercise  regulated  by  the  latter.  The  former  determine 
the  j>W»ia7  and  ultimate  authority  in  the  Government;  the  latter  serve 
as  means  to  invoke  and  give  force  to  it.  The  means  being  subordinate 
to  the  end,  it  follows  that  directory  provisions,  whether  constitutional 
or  statutory,  must  be  liberally  construed,  and  so  applied  as  to  give 
legitimate  force  and  efficacy  to  the  icill  of  the  sovereign  power  in  the 
State.  A  different  rule  would  subordinate  the  substance  to  the  shadow, 
and  would  in  the  end  substitute  technical  quibbles  for  the  ballots  of 
the  qualified  electors.  The  primal  inquiry  is,  Whom  did  the  qualified 
electors  choose,  as  evidenced  by  their  ballots  cast  or  offered  but  refused  ? 
The  ascertainment  of  "the  will  of  the  qualified  electors  is  the  end  of 
directory  statutes,  and  this  attained,  "  the  reason  ceasing  the  law  also 
ceases." 

The  House  is  the  exclusive  judge  of  the  qualifications,  elections,  and 
returns  of  its  own  members.  In  the  exercise  of  this  i)rerogative  it  is  not 
bound  by  the  technical  rules  of  judicial  procedure,  nor  even  by  its  own 
precedents.  These  may  be  persuasive,  and,  in  so  far  as  they  embody  the 
tcisdom  of  experience,  enlighten  the  mind  and  contribute  to  right  con- 
clusions. In  the  exercise  of  this  attribute  of  sovereignty  the  House  is 
charged  in  the  ultimate  with  the  maintenance  of  the  right  paramount 
and  preservative  of  all  other  rights — the  elective  franchise.  Therefore 
the  House  is  absolutely  uutrammeled,  and  answerable  only  to  the  sov- 
ereignty where  this  power  emanates.  The  electors  can  and  should  accept 
no  apology  for  any  evasion  or  abuse ;  every  case  should  be  decided  upon 
its  own  merits,  and  electors  should  accept  no  other  conclusion  than  the 
vindication  in  fact  of  the  right  of  representation.  Technical  quibbles 
.should  never  be  permitted  to  defeat  honest  ballots,  for  the  plain  reason 
that  so  long  as  the  people, have  the  power,  and  do  actualh  choose  the 
law  makers,  they  have  had  it  in  their  power  to  eliminate  or  amend  what- 
ever works  injury  to  their  rights  or  prosperity.  And  whatever  affects 
seriously  that  right  touches  the  vitals  .of  the  Kepublic.  We  cannot, 
therefore,  be  too  cautious  or  circumspect  in  deciding  a  contest  involving 
a  seat  in  this  House.  And  if  we  are  wise  and  patriotic,  we  will  be  aided 
by  rules  whose  soundness  has  been  attested  by  exi)erience. 

'  The  returned  member,  by  the  familiar  rule,  '•  Officers  are  presumed 
to  have  done  their  duty,"  is  supposed  to  have  been  duly  elected.  This 
presumption  should  be  maintained  unless  repelled  by  conclusive  evi- 
dence. If  a  return,  local  or  general,  be  attacked  for  fraud  or  illegality, 
the  testimony  of  officers  holding  the  election  is  of  great  weight,  because 
of  opportunities  to  know,  and  the  motive  of  duty  to  observe  all  things 
relating  to  the  election  in  their  charge  ;  and  such  is  the  weight  of  their 
evidence  that  it  cannot  be  overthrown  by  circumstantial  evidence  unless 
so  strong  as  to  admit  of  no  reasonable  hypothesis  compatible  with  the 
truthfulness  and  integritv  of  tbe  yfficers. 

The  first  point  made  by  the  contestant  in  his  brief  is  "that  the  county 


204  DIGEST    O^    ELECTION    CASES. 

canvassing  board  of  Madison  County  arbitrarily  rejected  the  returns  from 
two  election  districts,  from  which  325  votes  were  returned  for  contested 
and  474  for  contestant,"  thereby  giving  contestant  149  majority.  The 
contestee  replies  that  there  is  no  specification  of  this  claim  by  the  con- 
testant in  his  notice  of  contest,  nor  anywhere  else;  that  not  only  was 
there  no  notice  of  this  claim,  but  no  testimony  was  taken  on  the  subject 
to  support  it.  On  the  contrary,  the  contestant's  notice  of  contest  stated 
that  he  would  ask  to  have  all  the  returns  from  Madison  County  "  re- 
jected as  illegal  and  fraudulent." 

This  is  what  contestant  says  in  his  notice  as  to  Madison  County : 

MADISON   COUNTY. 

In  this  county  the  gross  fraud  was  committed  by  your  political  friends  of  staffing 
the  ballot-boxes  with  ballots  containing  your  name  for  Representative  to  Congress,  and 
drawing  out  from  such  boxes  ballots  containing  my  name  for  Representative  to  Con- 
gress, at  each  of  the  two  polls  in  the  town  of  Madison,  and  at  each  of  the  several  polls 
in  the  said  county  known  as  Cherry  Lake,  Hamburg,  Greenville,  and  the  two  polls  at 
Mosely  Hall,  and  at  each  of  the  other  polls  in  said  county,  whereby  I  was  cheated  and 
swindled  out  of  five  hundred  or  more  votes.  I  shall  ask  that  the  returns  from  each  of 
said  polls  be  rejected  as  evidence  of  the  true  vote  cast,  and  that  the  votes  actually  cast 
for  me  be  counted  as  cast.  I  shall  ask  that  the  county  canvass  be  rejected  as  illegal 
and  fraudulent. 

This  certainly  was  no  notice  to  contestee  that  contestant  proposed  to 
do  the  very  opposite  of  his  notice,  and  ask  to  count  instead  of  reject. 
It  was  reasonable  for  the  contestee  to  suppose  that  contestant,  in  claim- 
ing that  the  whole  county  should  be  rejected,  would  be  content  to  pass 
over  the  two  precincts  that  were  already  rejected.  The  contestant  him- 
self attacked  these  two  precincts  in  his  notice  of  contest.  They  were 
rejected  by  the  county  canvassing  board  upon  what,  in  the  absence  of 
all  proof,  must  surely  be  presumed  to  have  been  legal  ground,  and  no 
testimony  was  taken  to  show  that  they  were  improperly  rejected  or 
should  be  counted.  It  is  a  strange  position  for  contestant  to  take  at 
the  conclusion  of  the  contest  to  ask  that  returns  that  were  rejected 
in  the  oflBcial  canvass,  returns  that  he  himself  asked  to  have  rejected 
in  his  notice  of  contest,  and  that  no  evidence  is  adduced  to  show  were 
not  rejected  properly,  should  now  be  counted.  This  claim  is  so  uncer- 
tain and  dubious  that  in  no  part  of  the  whole  case,  from  the  beginning  to 
the  end  of  the  contest,  were  the  two  precincts  named,  and  not  until  con- 
testant filed  his  reply  to  contestee's  brief,  after  the  argument  was  over 
and  the  case  submitted,  did  he  disclose  the  names  of  these  two  pre- 
cincts. We  can  entertain  no  doubt  that  this  claim  of  the  contestant 
should  be  disallowed. 

We  next  come  to  the  first  county  attacked  by  contestant. 

ALACHUA  COUNTY. 

In  this  county  three  polls  are  assailed  by  contestant,  to  wit,  Arre- 
donda,  Newnansville,  and  Parker's  Store.  (Rec,  p.  3.)  The  following 
is  the  reference  to  this  county  by  contestant  in  his  notice : 

That  at  the  Newnansville  poll,  and  the  Arredonda  poll,  and  Parker's  Store  poll,  in 
Alachua  County,  the  gross  fraud  was  perpetrated  by  your  political  friends  of  stuffing 
the  ballot-boxes  with  ballots  containing  your  name,  and  ballots  containing  my  name 
for  Representative  to  Congress  were  taken  out  of  the  boxes,  so  that  the  total  vote 
cast  for  me  was  not  returned  ;  and  I  shall  ask  that  the  returns  from  these  three  jiolls 
be  excluded  as  evidence  of  the  vote  cast,  and  that  the  total  vote  cast  for  me  be 
counted  as  cast  at  these  polls. 


BISBEE,    JR.,    VS.    FINLEY.  205 

Arredonda  poll. 

The  contestant  asks  that  the  return  from  this  poll  be  rejected,  and 
that  no  votes  shall  be  counted  for  either  candidate  except  such  as  each 
has  i)roven  by  evidence  other  than  the  return. 

The  grounds  upon  which  contestant  asks  to  have  this  return  set  aside 
<qnd  disregarded,  and  the  vote  proven  by  aliunde  testimony,  are  as  fol- 
lows : 

1.  That  the  ballot-box  was  purposely  concealed  from  the  public  view 
by  a  passage-way  erected  to  the  polls. 

2.  That  the  vacancy  in  the  election  board  occasioned  by  the  absence 
of  the  Kepublican  inspector  was  illegally  filled. 

3.  That  a  Republican  watcher  was  not  allowed  in  the  voting-room. 

4.  That  the  officers  of  election  used  whisky,  and  that  Virgil  George, 
the  Ile])ublican  inspector,  was  drunk. 

5.  That  the  ballot-box  was  thrown  under  the  table,  or  so  handled  in 
the  poll-room  as  to  indicate  fraud. 

G.  That  the  ballot-box  after  the  election  was  in  the  custody  of  the  in- 
spector, who  had  the  key. 

7.  That  the  election  board,  in  violation  of  the  law,  adjourned  and 
went  to  supper  before  counting  the  vote. 

This  is  a  full  and  fair  statement  of  the  grounds  alleged,  and  from 
which  it  is  claimed  such  fraud  and  irregularity  are  to  be  inferred  as  to 
discredit  the  returns  and  reject  the  poll.  In  support  of  these  allegations 
the  contestant  called  five  witnesses,  viz :  J.  T.  Walls,  a  colored  man, 
who  was  a  candidate  for  State  senate ;  Jack  Trapp,  a  colored  man,  who 
was  a  United  States  deputy  marshal,  and  a  brother  of  the  candidate  for 
the  legislature;  Edwaid  Sammons,  who  was  United  States  supervisor; 
Charles  Dubose,  president  of  the  Kepublicau  club,  and  Ransom  Baskins, 
who  was  the  Republican  tally  clerk. 

Against  these  charges  of  fraud  the  contestee  called  W.  T.  Rice,  a  mer- 
chant, railroad  agent,  and  postmaster  of  Arredonda ;  J.  R.  Flewellen, 
a  Democratic  inspector;  Samuel  D.  Reed,  a  Democratic  inspector; 
Yirgil  George,  a  colored  man,  and  the  Republican  inspector;  Samuel  C. 
Tucker,  the  clerk  of  the  election ;  Amos  George,  a  colored  voter ;  W.  R. 
Mills,  a  country  merchant,  and  Julius  A.  Carlisle,  the  clerk  of  the  circuit 
court.  We  have,  therefore,  five  witnesses  on  the  one  side  to  show  the 
fraud,  and  eight  on  the  other  side  to  disprove  it.  We  will  take  the  points 
up  in  their  order,  and  give  the  language  of  the  witnesses  in  support  of 
and  against  each. 

1.  Was  the  ballot-box  purposely  concealed  from  public  view  by  a 
passage-way  to  the  polls  ? 

For  the  contestant : 

J.  T.  Walls  swears  : 

What  I  mean  by  keeping  order  is  that  Mr.  Cisero  Nichols,  deputy  sheriff,  at  or  about 
the  opening  of  the  polls,  there  being  such  a  cluster  of  people,  made  a  passage-way  to 
the  polls  about  sixteen  feet  long  out  of  boards,  and  wide  enough  for  two  persons  to 
stand  side  by  side,  and  there  was  a  place  for  them  to  pass  out  at  the  window  end  after 
voting. 

Bansom  Baskins  swears : 

Q.  Can  you  describe  the  interior  of  the  room  where  the  voting  occurred  and  the 
canvass  took  place  f— A.  There  were  two  rooms  connecting  with  the  polling-room. 
Between  the  store  and  the  polling-room  there  was  a  passage-way  which  was  open. 
When  they  came  back  from  supper  they  diil  not  bring  the  box  to  canvass  the  votes 
into  the  same  room  where  the  voting  had  taken  place,  but  they  took  it  into  another 
room  under  the  same  roof.     [Witness  here  draws  a  diagram  of  the  building  in  which 


206  DIGEST  OF  ELECTION  CASES. 

the  votiug  takes  place,  wliich  is  iutroiluced  ami  filed  in  evidence,  and  marked  Ex- 
hibit R.] 

For  the  contestee : 
W.  F.  Kice  swears : 

Q.  Do  you  know  or  did  you  hear  any  complaints  of  the  election  being  so  con- 
ducted at  that  poll  so  that  the  qualified  voters  who  were  present  did  not  have  the 
opportunity  to  vote  ? — A.  I  heard  no  complaint  of  that  kind. 

J.  E,  Flewelleu  swears : 

Q.  State  whether  or  not  the  said  election  at  Arredonda  was  so  conducted  that  all 
the  qualilied  voters  present  were  allowed  to  vote  without  interference  or  hinderance. — 
A.  It  was. 

S.  D.  Keed  swears : 

Q.  What  disposition  was  made  of  the  ballot-box? — ^A.  It  was  in  the  custody  of  the 
inspectors,  and  in  fall  view  of  the  voters. 

Q.  Can  you  state  Avhether  or  not  the  ballot-box  was  kept  in  the  presence  of  the  in- 
spectors, and  not  concealed  from  the  public,  the  whole  time  from  the  opening  of  the 
polls  until  the  closing  of  the  canvass  ? — A.  The  ballot-box  was  at  all  times,  from  the 
opening  of  the  polls  until  the  closing  of  the  count,  in  the  presence  of  both  the  polit- 
ical parties  and  two  or  more  of  the  inspectors,  and  not  concealed  from  the  public 
view. 

In  addition  to  this  testimony  all  the  witnesses  swear  that  the  election 
was  fairly  conducted  and  peaceable.  We  do  not  think,  therefore,  that  on 
the  evidence  this  allegation  of  fraudulent  concealment  of  the  ballot-box 
is  sustained. 

2.  Was  the  vacancy  in  the  election  board  illegally  filled  ? 

The  testimony  on  this  point  is  as  follows : 
For  contestant : 

J.  T.  Walls  swears  : 

Q.  Were  all  the  inspectors  there  when  the  polls  opened  ?  If  any  were  absent,  state 
whom,  and  if  you  know  the  cause  of  his  absence,  please  state. — A.  They  were  not ; 
Ephraim  George  was  appointed  by  the  county  commissioners  ;  was  absent.  He  was, 
as  I  understand,  out  of  the  county  for  about  a  year,  and  had  not  returned  up  to  the 
time  of  opening  the  polls.  I  understood  that  the  sheriff  had  a  warrant  for  him  for 
forging  a  note. 

Q.  State,  if  you  can,  how  the  vacancy  caused  by  his  non-appearance  was  filled. — 
A.  By  the  inspectors. 

Q.  Can  you  state  whether  or  not  the  majority  of  the  electors  present  at  the  polls 
when  George  was  appointed  an  inspector  by  the  other  inspectors  were  in  favor  of  said 
George  to  act  as  such,  or  did  they  express  themselves  as  dissatisfied,  and  want  to  have 
the  privilege  of  electing  an  inspector  themselves  to  fill  the  vacancy  ? — A.  I  heard 
some  of  them  express  themselves  as  objecting  to  the  manner  in  which  George  wa» 
made  an  inspector,  btit  no  objection  to  George,  claiming  that  they  had  the  right  to 
elect  an  inspector. 

Q.  Was  Virgil  George,  the  inspector  who  you  mention  in  your  direct  testimony,  a 
Republican  or  a  Democrat,  and  was  he  a  white  man  or  a  colored  man  ? — A.  He  is  a 
Republican  in  politics  and  a  colored  man. 

For  contestee : 

Mr.  J.  E.  Flewellen  swears : 

Q.  How  came  Virgil  George  to  be  chosen  as  inspector,  and  how  came  he  to  act  as 
stich  ? — A.  The  name  of  Virgil  George  was  sent  to  the  clerk,  as  we  understood,  and  by 
mistake  the  clerk  entered  the  name  of  Ephraim  George.  The  said  Ephraim  George  had 
not  been  for  some  years  a  resident  of  this  county. 

Q.  Was  Virgil  George  present  on  the  grounds  at  the  opening  of  the  polls  on  elec- 
tion day  ? — A.  He  was. 

Q.  State  whether  or  not  the  said  Virgil  George  was  regarded  generally,  both  by  the 
Democratic  and  Republican  voters  present,  as  well  as  bj-  the  inspectors,  as  the  person 
intended  to  be  the  Republican  inspector  at  the  polls  on  that  day. — A.  He  was;  he 
was  considered  by  everybody  as  the  man  appointed  to  be  inspector  at  said  poll. 
-  Q.  Was  any  opportunity  oftered  by  the  inspectors  present  to  choose  an  inspector 
in  his  place  if  he  had  not  been  so  regarded  ? — A.  There  was. 


BISBEE,    JK.,    VS.    FINLEY.  207 

Q.  Did  they  avail  themselves  of  this  opportanity,  or  did  they  decline  to  do  so  ? 

A.  They  said  nothing  about  it. 

Q.  Was  there  any  objection  interposed  to  his  acting  as  inspector? — A.  None  that  I 
heard  of. 

Q.  "Were  any  Kepublican  representatives  or  officials  admitted  into  the  poUing^ 
place  at  said  election  in  Arredouda  during  the  election  and  canvass  of  the  vot«  on- 
that  day  ? — A.  There  was. 

Q.  Was  there  or  not  any  distinction  made  by  the  inspectors  in  that  respect  between 
Democrats  and  Republicans? — A.  There  was  none. 

Q.  Who  first  asked  Virgil  George  to  act  as  inspector  of  said  election  ? — A.  I  don't 
know.  It  was  generally  conceded  by  whites  and  blacks  of  both  parties  that  he  was 
the  inspector.  Virgil  told  me  so ;  also  of  the  mistake  in  print,  and  asked  me  what  to- 
do  about  it.  I  told  him  if  any  objection  was  made  I  would  have  an  election  at  the 
polls  for  an  inspector ;  there  being  none,  he  acted  as  one. 

Q.  Did  you  or  Mr.  Reid.  or  either  of  you,  give  any  formal  notice  that  there  was  a 
vacancy  among  the  inspectors  which  the  voters  present  were  entitled  to  fill  then  and 
there  by  election  ? — A.  Immediately  before  going  into  the  room  to  be  sworn  in,  the 
question  was  asked  by  several  colored  men  in  the  crowd  who  were  the  managers  or 
inspectors.  I  told  them  that  myself  and  L.  D.  Reid  were  the  Democrats,  and  Virgil 
George  was  intended  for  the  Republican  ;  that  he  was  the  only  man  who  can  read 
and  write,  and  I  supposed  that  he  would  act,  as  they  had  none  other  that  could  do  it 
in  that  party  here.  I  told  him  to  go  in,  and  if  there  was  any  objection  made  we  would 
have  an  election. 

Q.  Did  you  make  any  further  notice  after  you  were  sworn  in,  you  or  Mr.  Reid? — 
A.   We  ilid  not. 

Q.  About  how  many  voters  were  present  at  the  polls  at  the  time  you  opened  them  f 
— A.  I  don't  suppose  there  were  five  absent  of  all  the  voters  who  voted  that  day. 

Virgil  George  swears : 

Q.  Were  you  at  Arredonda  at  said  election  ? — A.  I  was. 

Q.  Did  you  or  not  act  in  any  official  capacity  at  that  election;  and,  if  so,  what? — 
A.  I  did  act  as  inspector;  was  elected  inspector  that  morning. 

Q.  Why  was  it  that  you  acted  as  such  inspector? — A.  I  understood  that  the  clerk 
had  made  a  mistake  when  Ephraim  George,  my  sou,  was  appointed  inspector,  as  her 
had  been  absent  from  the  county  for  two  years  previous  to  the  election,  and  that  I 
was  the  party  intended  to  be  appointed. 

Q.  Are  you  and  were  you  at  the  time  of  said  election  a  Republican  or  Democrat  ?^ — 
A.  I  am  a  Republican,  and  was  at  the  time  of  said  election. 

Q.  Were  you  drunk  or  sober  on  that  day? — A.  I  was  sober. 

Q.  Was  there  not  any  objection  made  by  any  of  the  voters  present  to  your  acting 
as  inspector  ? — A.  None  that  I  know  of. 

Q.  Did  you  or  not,  while  you  were  acting  as  inspector,  feel  anxious  for  the  success 
of  the  Republican  party,  and  did  you  not  consider  it  to  be  your  duty  to  watch  and 
protect  the  interests  of  that  party  at  said  election  ? — A.  Yes,  sir ;  I  did. 

Q.  Were  yoii  so  watchful  of  that  interest  ? — A.  I  was. 

Q.  Can  you  state  whether  or  not  said  election  was  a  peaceful  and  fair  election,  or 
otherwise? — A.  It  was  a  peaceful,  fair,  and  square  election,  as  far  as  I  could  see. 

Sam  D.  Keed  swears  : 

Q.  State  whether  or  not  it  was  understood  that  Virgil  George  was  intended  to  be 
one  of  the  inspectors  at  the  election  at  Arredonda  preciuct  f — A.  It  was.  It  was  by 
mistake  that  the  county  commissioners  appointed  Ephraim  instead  of  Virgil  George, 
as  the  said  Ephraim  George  was  not  at  the  time  a  citizen  of  this  county. 

Q.  State  whether  or  not  said  election  at  Arredonda  was  so  conducted  that  all  the 
legal  voters  present  had  an  opportunity  to  vote,  whether  they  were  Republican  or 
Democrat. — A.  So  far  as  I  know  every  one  had  an  opportunity  to  vote  as  he  pleased. 

Q.  You  state  on  your  direct  examination  that  Virgil  George  was  intended  as  in- 
spector for  Ephram'  George.  Now,  state  if  that  was  the  intention  of  the  county  com- 
missioners. How  do  you  know  it  to  be  so  ?— A.  My  impression  is  derived  from  the 
fact  that  Virgil  stated  it,  and  it  was  the  general  impression  throughout  the  county. 

The  teslimouy  very  clearly  shows  that  there  was  no  fraudulent  pur- 
pose in  the  appointment  of  Virgil  George  as  thQ.Eepublican  inspector 
at  this  poll,  instead  of  his  son  Ephraim,  who  seems  to  have  been  named 
by  the  commissioners  by  mistake.  Indeed  it  is  hard  to  see  why  the 
contestant  should  complain  of  having  an  honest  man  of  mature  years, 
and  to  whom  Mr.  Walls  says  there  was  no  objection,  instead  of  a  young 
man  who  was  a  criminal  and  a  fugitive  from  justice.    The  appointment 


208  DIGEST    OF    ELECTION    CASES. 

^as  not  strictly  or  tecbnically  correct,  but  it  was  honestly  made  and  no 
harm  resulted. 

3.  Was  a  Republican  watcher  refused  admission  to  the  voting-room  ? 

The  testimony  on  this  point  is  as  follows : 

Por  contestant : 
J.  T.  Walls  swears : 

Q.  Can  you  state,  of  your  own  knowledge,  whether  or  not  a  representative  to  act 
in  behalf  of  the  Republican  party  inside  of  the  polling  place  was  nominated  and  pre- 
ferred by  the  Republicans  present  at  the  polls — was  made  and  appointed  ?  And  if 
there  was  such  representative  nominated  and  appointed,  state,  if  you  can,  his  name, 
and  whether  or  not  he  acted,  or  was  allowed  to  act,  in  such  representative  capacity 
inside  of  said  polling  place. — A.  lean.  There  was  one  nominated  and  preferred; 
myself,  J.  T.  Walls,  was  the  iierson.  I  did  not  act ;  I  was  not  allowed  to  act ;  in- 
side of  the  polling  place.  I  was  refused  admission  into  the  room  or  polling  place 
by  the  clerk,  Samuel  C.  Tucker,  and  the  inspectors,  J.  R.  Flewellyn  and  Samuel  D. 
Eeid. 

Q.  State  the  objection  they  made  to  your  admission  inside. — A.  Mr.  Flewellyn's 
objection  was  that  I  was  an  interested  party,  being  a  candidate  for  the  senate. 

Jack  Trapp  swears: 

Q.  Were  you  there  when  a  Republican  representative  was  chosen  to  act  inside  of 
the  polls  ?  If  so,  state  his  name,  and  whether  or  not  he  was  admitted,  and  tell  all 
you  know  about  it. — A.  I  was  there  when  there  was  one  chosen ;  his  name  was  J.  T. 
Walls;  he  was  not  allowed  inside  of  the  polling  place.  The  inspectors  refused  ad- 
mission. The  inspectors  who  refused  him  were  Flewellyn  and  Eeid,  because  he  was 
an  interested  party. 

Edward  Sammons  swears : 

Q.  Were  you  a  Republican  and  a  supervisor  at  Arredonda  at  the  last  election  ? — A. 
I  was. 

Q.  What  did  you  regard  to  be  your  duty  as  such  supervisor  ? — A.  It  was  to  look  out 
for  all  frauds  that  might  happen  against  the  Republican  party  that  day. 

Q.  Was  that  all  the  duty  that  you  thought  devolved  upon  you  as  such  supervisor  ? — 
A.  I  had  it  in  my  mind  that  it  was  my  duty  to  see  that  each  party  was  dealt  fairly 
and  squarely  by,  and  if  there  was  any  frauds  made  I  was  to  make  a  report  to  the 
chief  supervisor  of  the  State. 

Q.  Did  you  or  not  make  such  report;  and,  if  so,  to  whom  did  you  make  such  report 
as  such  chief  supervisor  ? — A.  I  brought  Mr.  Hughes  a  blank  report;  I  furnished  all 
the  facts,  and  got  him  to  fill  it  out  for  me. 

Q.  Have  you  a  copy  of  that  report  ? — A.  No,  I  have  not  got  it  now  ;  it  was  burued 
up  in  my  house. 

Q.  What  time  was  this  report  made  after  the  election  ? — A.  The  second  day  after 
the  election. 

Q.  Who  was  Mr.  Baskin,  whom  you  say  was  called  on  by  the  inspectors  to  tally  the 
votes ;  was  he  a  Republican  or  Democrat  ? — A.  He  has  been  a  Republican,  but  I  can- 
not say  what  he  was  then. 

For  contestee : 
J.  R.  Flewellyn  swears : 

Q.  Was  or  not  J.  T.  Walls  an  applicant  to  be  admitted  into  the  i)olling  place  as  a 
Republican  f — A.  He  was  not  until  dark ;  theu  he  made  direct  application  to  me, 
through  Mr.  Reid,  one  of  the  inspectors.  I  refused  on  the  grounds  that  he  had  a  rep- 
resentative, and  that  he  was  a  party  at  interest,  being  a  candidate  for  the  State 
senate.  His  representatives  were  Edward  Sammons,  and  another  whose  name  I  do 
not  now  remember ;  those  parties  were  admitted  to  the  polling  place. 

Virgil  George  swears : 

Q.  Were  there  or  not  any  Republican  representatives  interested  in  the  success  of 
the  Republican  party  admitted  into  the  polling- room  during  said  election  and  during 
the  canvass  of  the  vote  ? — A.  Yes,  sir ;  Edward  Sammons,  acting  as  supervisor,  and 
Ransom  Baskins  were  admitted. 

Q.  Were  they  present  during  the  voting  and  canvassing  of  the  vote  ? — A.  Ed.  Sam- 
mons was  present  all  the  time,  and  Ransom  Baskins  spent  most  of  his  time  outside 
while  the  voting  was  going  on,  but  was  present  after  the  polls  were  closed. 

This  testimony  discloses  that  the  contestant  was  fairly  represented 


BISBEE,    JR.,    VS.    FINLEY.  209 

by  zealous  friends  duriug  the  day  of  the  election  at  the  polls  and  at  the 
■count  of  the  votes.  "  Mr.  Sammons  swears  that  as  United  States  super- 
visor he  regarded  it  as  his  special  duty  to  watch  the  interests  of  the  Re- 
publican party,  and  did  so.  It  is  also  shown  that  while  Mr.  Walls  may 
have  been  legally  qualified  to  act  as  a  watcher  inside  of  the  polls,  it  was 
highly  indelicate  and  improper  that  he  should  have  insisted  on  acting 
in  any  capacity  in  the  conduct  of  the  election  at  which  he  was  a  candi- 
date for  a  high  office.  It  was  a  technical  violation  of  the  law  to  refuse 
him  jiermission  to  act,  but  there  is  no  evidence  whatever  that  he  suf- 
fered any  harm  by  being  refused ;  but,  on  the  contrary,  the  evidence 
shows  that  he  himself  did  not  claim  that  there  was  any  fraud  commit- 
ted by  reason  of  his  exclusion.  It  is  also  shown  that  he  did  not  make 
application  until  evening. 

4.  Were  the  officers  of  the  election  disqualified  by  using  whisky,  and 
was  Virgil  George,  the  Republican  inspector,  drunk  ? 

The  testimony  on  this  point  is  as  follows : 

For  contestant : 
Eansom  Baskins  swears : 

Q.  Was  there  any  liquor  in  the  room  while  the  canvass  of  the  vote  was  going  on; 
and,  if  so,  how  much  did  you  see,  and  who  had  it;  and  was  it  or  not  all  drank  be- 
fore the  votes  were  canvassed  ? — A.  Yes  ;  there  was  liquor  ;  I  saw  one  bottle  and  a 
flask.  Everybody  who  had  anything  to  do  with  counting  the  votes  was  drinking 
that  whisky  or  liquor.     I  think  that  it  was  all  drank. 

J.  T.  Walls  swears  : 

Q.  Can  you  state,  to  the  best  of  your  knowledge  and  belief,  that  Virgil  George,  the 
party  who  acted  as  inspector,  and  who  you  say  was  appointed  by  the  other  inspectors 
to  fill  the  vacancy,  was  in  a  fit  condition  to  perform  his  duties,  or,  if  he  wa8,'wq,8  he 
competent  to  ? — A.  When  he  was  taken  to  their  assistance  by  them  I  thought  that  he 
was  drinking  some ;  my  opinion  is  that  in  a  sober  condition  he  would  be  fully  compe- 
tent. 

Eansom  Baskins  swears : 

Q.  Was  not  Virgil  George,  one  of  the  inspectors,  pretty  well  filled  up  with  whisky 
or  some  other  intoxicating  liquor  ? — A.  I  saw  him  drinking,  and  at  times  saw  him  with 
his  eyes  shut  and  his  head  nodding. 

For  contestee : 
Samuel  D.  Reid  swears : 

Q.  Do  you  know  the  inspector  Virgil  George?  And,  if  so,  state  whether  or  not  he 
is,  and  was  at  the  time  of  said  election,  a  Democrat  or  a  Republican. — A.  I  am  ac- 
•piainted  with  Virgil  George.  I  have  every  reason  to  believe  that  he  is,  and  was  at 
the  time  of  the  election,  a  strong  Republican. 

Q.  Was  he  drunk  or  sober  on  election  day  ? — A.  He  was  sober. 

Q.  Does  not  Virgil  George  bear  the  reputation  of  being  a  dissipated  man,  and  have 
you  seen  him  frequently  intoxicated  ? — ^A.  I  don't  think  he  bears  that  reputation.  I 
think  I  have  seen  him  intoxicated  about  twice  in  three  years. 

Virgil  George  swears: 

Q.  Were  you  drunk  or  sober  on  that  day? — A.  I  was  sober. 
Samuel  C.  Tucker  swears : 

Q.  Please  state  whether  or  not  Virgil  George  on  the  day  of  said  election  drank  any- 
thing intoxicating  ? — A.  I  don't  know,  because  I  did  not  see  him  do  it. 

The  testimony  further  shows  that  the  officers  of  the  election  were  men 
of  high  character  for  integrity  and  honor,  and  had  no  interest  in  the  re- 
sult. It  is  respectfully  submitted  that  there  is  nothing  to  maintain  this 
point. 

5.  Was  the  ballot-box  thrown  under  the  table,  or  so  manipulated  and 
used  in  the  poll-room  as  to  prove  that  a  fraud  was  committed  ? 

H.  Mis.  35 U 


210  DIGEST    OF    ELECTION    CASES.'   , 

The  evidence  on  this  point  is  as  follows  : 
For  contestant : 

J.  T.  Walls  swears :  , 

Q.  Was  the  ballot-box  concealed  at  any  time  before  said  adjournment  from  the  pub- 
lic view  ;  if  so,  where  was  it  ? — A.  It  was.  When  the  polls  were  announced  to  he 
closed,  the  clerk  of  the  election,  Mr.  Tucker,  reminded  the  inspectors  to  be  careful 
with  the  ballot-box,  and  Mr.  Flewellyn,  one  of  the  inspectors,  took  the  ballot-box  off 
of  the  table  where  it  was  sitting  near  the  window,  and  threw  it  under  the  table 
towards  the  entrance  from  the  bar.  I  did  not  see  anything  more  of  the  ballot-box 
until  Mr,  Flewellyn,  one  of  the  inspectors,  picked  it  up  as  they  adjourned  for  supper. 

Q.  At  the  time  you  state  he  threw  the  box  under  the  table,  was  there  any  confusion 
or  excitement  going  on  ;  if  so,  what  was  it  f — A.  I  did  not  notice  any. 

Q.  At  the  time  the  ballot-box  was  thrown  under  the  table,  was  there  any  debate 

foing  on  relative  to  an  adjournment  for  supper  ? — A.  There  was  none  at  that  time, 
fter  the  tally-sheet  was  prepared  there  was  some  discussion  as  to  whether  they 
would  proceed  to  count  or  go  to  supper,  and  they  adjourned  for  supper. 

Q.  Who  took  part  in  the  discussion,  as  near  as  you  can  recollect  I — A.  Nobody,  to  my 
recollection,  but  the  inspectors.  We  did  not  see  the  ballot-box.  Some  of  them  said 
they  were  hungry,  and  would  not  get  home  before  midnight,  and  so  they  adjourned. 

Q,  You  state  that  shortly  after  the  polls  closed  the  ballot-box  was  thrown  under 
the  table.  Was  that  before  or  after  they  proceeded  to  make  the  tally-sheet,  and  how 
long  before  they  adjourned  for  supper  ? — A.  It  was  thrown  under  the  table  about  the 
time  they  commenced  to  make  the  tally-sheet,  and  I  did  not  see  it  again  for  about  half 
an  hour,  when  they  adjourned  for  supper. 

Q.  Please  state  who  were  in  the  room  during  the  election. — A.  I  saw  Mr.  Flewellyn, 
S.  D.  Reid,  Samuel  Tucker,  Virgil  George,  Edward  Sammons,  and  John  Bevill.  There 
may  have  been  others  in  the  room.  The  time  I  noticed  these  particularly  was  when 
I  was  refused  admission. 

Q.  What  time  of  day  did  the  polls  closet — A.  About  sunset. 

Q.  Do  you  know  how  many  were  in  the  room  when  the  polls  closed,  and  who  they 
were  ? — ^A.  J.  E.  Flewellyn,  S.  D.  Eeid,  S.  C.  Tucker,  Virgil  George,  John  Seville,  and 
Edward  Sammons. 

Q.  Who  was  Edward  Sammons  ?  Was  he  a  Democrat  or  a  Republican,  a  white  man 
or  a  colored  man  ? — A.  He  is  a  colored  man.  He  acted  as  Republican  United  States 
supervisor,  and  is  a  Republican. 

Jack  Trapp  swears : 

Q.  Were  you  there  at  the  close  of  the  polls  ? — A.  I  was. 

Q.  What  was  done ;  did  they  proceed  to  canvass  the  votes  at  the  close  of  the  polls  T 
— A.  Yes ;  they  pretended  to  proceed,  but  they  did  not.  They  said  they  were  going 
to  supper,  but  they  did  not  go  right  away.  Flewellyn,  one  of  the  inspectors,  ordered 
the  window  to  be  pulled  to.  They  staid  there  and  talked  about  twenty-five  minutes, 
and  I  pulled  the  window  open  again,  and  then  Flewellyn  took  the  box,  sajing  he  was 
afraid  that  some  one  would  take  the  box  and  run  off  with  it,  and  threw  it  under  the 
table,  I  told  him  they  were  not  apt  to  do  it ;  and  then  they  closed  the  window  and 
went  to  supper.  I  went  with  the  inspectors.  They  carried  the  box  with  theio.  I 
disremember  which  one  had  the  box  ;  and  I  did  not  see  the  box  any  more  after  Wiey 
carried  it  in  the  house, 

Q.  In  what  capacity  did  you  act  on  the  day  of  election  at  Arredonda  f — A.  I  was 
United  States  deputy  marshal, 

Q.  By  whom  were  you  appointed  ? — A,  The  marshal  of  the  United  States  court. 

Q.  What  did  you  say  was  done  with  the  ballot-box  when  the  polls  were  closed  T — 
A.  They  put  it  under  the  table.    I  was  standing  outside  *at  the  window. 

Q,  When  did  the  polls  close  ? — A,  About  sundown. 

Q.  Did  you  or  not  see  any  one  tamper  with  the  ballot-box  in  any  way  at  anytime? 
— ^A.  No,  sir ;  I  did  not. 

Q,  Are  you  a  Republican  or  Democrat,  and  what  was  your  politics  at  the  time  of 
the  election? — A,  ^  am  a  Republican,  and  was  then. 

Edward  Sammons  swears : 

Q,  What  official  capacity,  if  any,  did  you  occupy  at  the  election  at  Arredonda  held 
on  the  2d  day  of  November  last  ? — A,  I  was  United  States  supervisor  at  that  election. 

Q.  Were  you  present  when  the  polls  were  opened  ? — A,  I  was. 

Q.  Were  you  present  when  the  polls  were  closed  ? — A.  I  was. 

Q.  Where  were  you  when  the  polls  were  closed  ? — A.  Inside  of  the  polling-room. 

Q.  Did  the  inspectors  immediately  proceed  to  count  the  votes  when  they  announced 
the  polls  closed  ? — A,  They  did  not, 

Q,  Tell  what  was  done  and  what  took  place  at  the  close  of  the  polls  inside  of  the 
polling  room. — A.  Mr,  FleweUen  said,  "  We  announce  now  that  it  is  6  o'clock  and  the 


I 


BISBEE,    JR.,    VS.    FINLEY.  211 

polls  are  closed."    After  that  there  were  no  more  votes  taken,  and  we  stopped  some 
considerable  time  in  the  room.     I  do  not  know  how  long. 

Q.  Where  was  the  box  all  this  time  after  the  polls  were  announced  closed  f— A.  Mr 
Flewellyn  was  standing  with  his  hand  on  it. 

Q.  Was  the  box  at  any  time  removed  from  the  public  view  while  in  the  room  ?— A. 
It  was. 

Q.  State  when  and  how  long.— A.  During  the  time  he  had  his  hand  on  the  box  the 
question  arose :  He  said,  "  Boys,  it  may  take  us  all  night  to  count  these  votes,  and  as 
I  have  sup])er  prepared  for  six  we  had  better  get  it."  Then  he  said,  "We  need  a  tal- 
lyman ;  we  had  better  fix  that  up  before  supper."  Then  arose  an  argument  between  him 
and  me  about  it ;  and  I  asked  him  who  would  that  be.  He  said  that  was  left  to  me  • 
that  he  was  looking  out  for  himself,  and  I  must  look  out  for  myself.  At  that  time 
Sam  Reid  touched  me  and  I  started  out  in  the  little  anteroom,  and  I  heard  a  rumbling 
behind  me  and  I  noticed  back  to  see  what  it  was,  and  it  was  the  box  falling  under  the 
table,  and  I  stood  in  sight  and  talked  to  Mr.  Reid  perhaps  about  a  quarter  of  an  hour 
before  it  was  picked  up  from  the  floor  and  put  on  the  table.  At  th^t  time  Mr.  Reid 
and  myself  had  decided  to  let  Walls  come  in  and  keep  tally.  Flewellyn  objected  to  it 
and  picked  up  the  box  and  walked  out,  and  when  he  got  outside  of  the  door  he  gave  it 
to  Virgil  George  ;  and  Virgil,  and  Flew ellen,  and  SamReid,  myself,  Sam  Tucker,  John 
Bevill,  and  Dr.  Carew,  and  Jack  Trapp  marched  out  for  Mrs.  Burk's  boarding-house. 
I  went  with  them  to  within  about  fifty  yards  of  her  door ;  myself  and  Sam  Reid 
stopped  and  we  talked  there  perhaps  ten  minutes;  the  others  went  on  with  the  box. 
After  that  myself  and  him  went  to  the  boarding-house.  Jack  Trapp  was  standing  on 
the  piazza  outside  of  the  door  and  Mr.  Reid  told  him  that  he  did  not  regard  his  badge ; 
that  he  did  not  belong  there  and  had  better  get  away.  I  had  an  invitation  in  with 
them  to  supper,  and  as  I  passed  in  through  the  door  to  the  supper-room,  on  the  right 
of  me  as  I  passed  in,  I  saw  Virgil  George  sitting  by  the  side  of  the  door  with  the  box 
in  his  lap,  and  the  other  inspectors  were  in  there  with  him.  I  went  on  by  the  door 
about  thirty  feet  further  and  on  the  left  I  went  into  a  room,  and  had  been  there  about 
ten  minutes  and  Virgil  George  came  to  the  room  where  I  was  and  left  the  box  behind 
him.  In  about  ten  or  fifteen  minutes  afterwards  Mr.  Flewellyn  came  to  the  room 
where  Virgil  and  I  was  and  brought  the  box  with  him.  He  say's,  "Hurrah,  boys,  we 
must  get  back." 

Q.  You  said  in  your  direct  examination  that  after  the  polls  were  closed  the  ballot- 
box  was  for  a  time  concealed  from  the  public  view.  Will  you  state  when,  how  long^ 
and  how  that  was  ? — A.  During  the  time  what  I  called  concealed  it  was  from  them 
outdoors,  but  not  from  those  in  the  house.  It  waa  about  fifteen  minutes,  more  or 
less.    I  had  no  watch. 

For  contestee : 

J.  R.  Flewellen  swears : 

Q.  What  was  done  with  the  ballot-box  when  the  polls  were  closed,  and  afterwards, 
until  the  votes  were  canvassed  ? — A.  At  sundown  I  closed  the  polls,  after  having  given 
fifteen  minutes  beforehand.  The  ballot-box  remained  on  a  goods  box,  which  served 
as  a  table,  with  the  open  side  down,  until  dark  ;  then  I  took  it  up  in  my  arms,  while 
we  had  two  lighted  candles  in  the  room,  and  gave  it  to  the  Republican  inspector,  and 
closed  the  window  of  the  room  that  we  were  then  in,  and  the  inspectors  together  went 
out  of  the  door  and  went  a  distance  of  about  a  hundred  yards  to  supper  at  a  board- 
ing-house, the  said  inspector  retaining  the  ballot-box.  While  the  Democratic  in- 
spectors were  at  supper  the  Republican  inspector  was  seated  in  the  same  room  with 
the  box.  After  the  Democratic  inspectors  got  through  eating  I  went  with  Republi- 
can inspector  to  another  room,  where  his  supper  was  served ;  then  he  gave  me  the 
ballot-box,  and  I  held  it  immediately  in  his  presence  until  he  got  through  eating ; 
then  I  gave  the  ballot-box  back  to  him,  and  Mr.  S.  D.  Reid,  the  other  inspector,  joined 
us,  and  we  went  back  to  the  room  where  the  election  was  held,  and  in  the  adjoining 
room,  with  the  door  wide  open,  and  four  candles  burning,  I  announced  that  we  woald 
then  commence  the  canvassing  of  the  votes,  which  we  did. 

Q.  State  whether  or  not  the  ballot-box,  from  the  time  the  polls  were  closed  up  to 
the  time  the  inspectors  went  to  supper  and  carried  it,  was  exposed  to  the  public  view. 
— A.  It  was.  • 

Q.  Were  there  others  in  the  room  during  this  time  under  the  inspectors,  and  were 
any  of  them  Republicans?— A.  There  were  two  supervisors,  one  a  Republican,  the 
other  a  Democrat,  and  the  clerk,  in  the  room  during  the  entire  time. 

Q.  Was  the  ballot-box  at  any  time,  from  the  closing  of  the  polls  to  the  time  it  was 
taken  by  the  Republican  inspector,  Virgil  George,  put  or  thrown  under  a  table  ?— A. 
It  was  not ;  there  was  not  a  table  in  the  room. 

Q.  Was  there  not  a  little  table  occupied  by  the  clerk  T— A.  there  was  a  small  candle- 
stand  ;  not  much  larger  than  the  paper  on  which  this  testimony  is  written. 

Q.  Was  there  any  attempt  made  by  you,  or  any  of  the  inspectors,  at  any  time  up  to 


212  DIGEST    OF.    ELECTION    CASES. 

the  closing  of  the  canvass  and  the  ascertainment  of  the  result  of  saitl  election,  to  con- 
ceal or  tamper  with  said  ballot-box  ? — A.  There  was  not. 

Q.  State  whether  or  not,  so  far  as  you  were  concerned,  an  d  so  far  as  your  observation 
extended  to  the  other  officers  of  the  election,  there  was  an  earnest  and  honest  effort- 
to  comply  with  the  election  laws  at  said  election  at  Arredonda. — ^A.  We  tried  in  every 
respect  to  go  by  the  election  laws.  We  had  them  with  us,  and  complied  with  them. 
a.8  well  as  we  knew  how. 

Sam  D.  Eeid  swears  : 

Q.  Were  you  present  at  the  closing  of  the  polls  on  the  day  of  election  at  Arre- 
donda T — A.  I  was. 

Q.  What  disposition  was  made  of  the  ballot-box  ? — A.  It  was  in  the  custody  of  the 
inspectors,  and  in  full  view  of  the  voters. 

Q.  What  was  the  size  of  the  room  where  the  election  was  held? — A.  I  suppose  it  to- 
be  eight  by  ten,  and  may  be  ten  by  twelve. 

Q.  State  whether  |or  not  you  saw  the  inspector  Flewellen  throw  the  ballot-box  at 
any  time  under  the  table. — A.  I  did  not.  There  was  not  a  table  large  enough  for  the 
box  to  have  gone  under  in  the  room.  The  only  table  in  the  room  was  a  small  toilet 
table,  the  construction  of  the  legs  of  which  was  such  as  that  a  box  could  not  have 
been  put  under  it. 

Q.  State  whether  or  not  there  was  any  distinction  made  in  the  admission  of  Demo- 
cratic and  Republican  representatives  inside  the  polling  place. — A.  There  was  no  dis- 
tinction. 

Q.  State  whether  or  not  the  election  held  at  Arredonda  as  aforesaid  was  a  fair  and  a 
peaceable  one,  or  was  it  otherwise. — A.  It  was  fair,  impartial,  and  peaceaWe,,  and  iu  , 
conformity  with  the  election  laws. 

Virgil  George  swears : 

Q.  W'ere  you  present  when  the  polls  were  closed? — A.  I  was. 

Q.  Did  you  see  any  of  the  inspectors,  at  any  time,  put  the  ballot-box  under  a  table 
or  iu  any  other  concealed  place  ? — A.  No  ;  I  did  not. 

Q.  Did  you  not  see  Inspector  Flewellen  put  the  ballot-box  under  a  table  T — A.  No, 
sir.     Upon  my  word  and  honor  I  did  not. 

Q.  Was  there  any  table  in  the  polling-room  f — A.  There  was  a  very  small  table  in 
1;he  room. 

Q.  What  became  of  the  ballot-box  after  the  polls  were  closed  ?— A.  After  the  polls 
-were  closed  we  consulted  whether  we  would  go  to  supper,  and,  after  having  con- 
cluded to  go  to  supper,  we  then  considered  what  we  would  do  with  the  box.  It  was 
determined  that  we  all  would  go  together  to  the  supper-house,  about  seventy-five 
yards  off,  and  that  one  of  the  inspectors  take  the  ballot-box  and  another  the  key. 
They  gave  me  the  box  and  Mr.  Flewellen  the  key,  and  we  all  went  together  to  sup- 
per. 

Samuel  C.  Tucker  swears  : 

Q.  Were  you  present  at  the  closing  of  the  polls  at  Arredonda  at  the  election  held 
there  on  the  td  day  of  November  last  ? — A.  I  was. 

Q.  Can  you  state  whether  or  not  the  ballot-box  was  put  under  a  table  by  any  of  the 
inspectors,  or  in  any  concealed  place,  by  them  or  any  one  else  ? — ^A.  It  was  not,  that 
I  saw.  We  had  no  table  while  there  in  the  room  when  the  ballots  were  received  ex- 
cept a  little  toilet  table,  on  which  I  did  my  writing.  The  ballot-box  was  set  on  a 
large  goods  box. 

Q.  What  disposition  was  made  of  the  ballot-box  after  the  polls  were  closed  ? — A. 
It  remained  on  that  box  until  j  ust  before  we  went  to  supper.  Mr.  Flewellen  took  the 
ballot-box  from  off  this  box,  the  wind  blowing  strongly  at  the  time  in  the  window 
where  the  box  was  sitting,  and  held  it  in  front  of  the  inspectors.  This  was  done  as  a 
precautionary  measure,  for  fear  that  the  lights  might  be  blown  out  by  the  wind  and 
some  one  might  snatch  the  ballot-box. 

This  testimony  leaves  it  in  very  great  doubt  whether  the  ballot-box 
was  on  the  floor  at  all.  It  clearly  shows  that  it  was  not  purposely 
thrown  there.  It  still  more  clearly  shows  that  it  was  at  all  times  in  the 
presence  of  friends  of  both  parties.  Flewellen,  Eeid,  and  Tucker,  who 
were  present  in  the  room  with  the  ballot-box,  were  Democrats  ;  George, 
Beville,  and  Sammons  were  Eepublicans,  and  there  is  no  scintilla  of 
proof  that  there  was  any  tampering  with  the  box  or  any  fraud  com- 
mitted. 

Walls,  who  was  outside  of  the  house  and  could  not  see  what  was  go- 
ing on  in  the  room,  says  that — 


BISBEE,    JR.,    VS.    FINLEY.  213 

Flewelle*  took  the  ballot-box  from  the  table  where  it  was  sitting  near  the  window 
and  threw  it  under  the  table  towards  the  entrance  from  the  bar. 

SammoHS,  on  p.  194  of  the  Record,  says : 

At  that  time  Sam  Eeid  touched  me,  and  I  started  out  in  the  little  ante-room,  and  I 
heard  a  rumbling  behind  me,  and  I  noticed  back  to  see  what  it  was,  and  it  was  the 
box  fallmg  under  the  table,  and  I  stood  in  sight  and  talked  to  Mr.  Held  perhaps  about 
a  quarter  of  an  hour  before  it  was  picked  up  from  the  floor  and  put  on  the  table. 

This  Tvitness  Sammons  testifies,  on  page  195  of  the  Record,  is  fol- 
lows: 

Q.  Were  you  a  Republican  and  a  supervisor  at  Arredonda  at  the  last  election  t — A, 
I  was. 

Q,  What  did  fan  regard  to  be  your  duty  as  such  supervisor  ? — A.  It  was  to  look  out 
for  all  frauds  that  might  happen  against  the  Republican  party  that  day. 

Regardiug'  it  to  be  his  duty,  as  he  swears,  "  to  look  out  for  all  frauds 
that  might  happen  against  the  Republican  party,"  and  standing  in  sight 
of  the  ballot-box  from  the  time  it  is  alleged  to  have  been  thrown  under 
the  table,  watching  it,  as  he  evidently  was,  can  any  impartial  mind, 
seeking  after  truth,  come  to  a  conclusion  from  this  evidence  that  it  was 
possible  that  this  ballot-box  could  have  been  tampered  with  while  it  was 
under  that  table,  if  it  was  ever  thrown  under  a  table  ?  It  was  entirely 
impossible,  as  is  shown  by  the  contestant's  own  testimony. 

From  the  following  testimony  of  the  Republican  supervisor,  Sam- 
mons, it  will  be  seen  that  the  ballot-box  was  never  concealed  from  those 
in  the  house  (see  Rec,  195)  : 

Q.  You  said  in  your  direct  examination  that  after  the  polls  were  closed  the  ballot- 
box  was  for  a  time  concealed  from  the  public  view.  Will  you  state  when,  how  long, 
and  how  that  was  ? — A.  During  the  time  what  I  called  concealed  it  was  from  them 
outdoors,  but  not  from  those  in  the  house.  It  was  about  fifteen  minutes,  more  or 
less.     I  had  no  watch. 

Who  were  in  the  room  from  whom,  Sammons  says,  the  box  was 
n6ver  concealed  ?  Contestant's  witness,  Walls,  on  p.  189  of  the  Record, 
answers  this  question  as  follows : 

Q.  Please  state  who  were  in  the  room  during  the  election. — A.  I  saw  Mr.  Flewellyn, 
S.  D.  Reid,  Samuel  Tucker,  Virgtt  George,  Edward  Sammons,  and  John  Bevill.  There 
may  have  been  others  in  the  room.  The  time  I  noticed  these  particularly  was  when 
I  was  refused  admission. 

Q.  What  time  of  day  did  the  polls  close? — A.  About  sunset. 

Q.  Do  you  know  how  many  were  in  the  room  when  the  polls  closed,  and  who  they 
were  f — A.  J.  R.  Flewellyn,  S.  D.  Reid,  S.  C.  Tucker,  Virgil  George,  John  Bevill,  and 
Edward  Sammons. 

In  this  little  room,  of  the  dimensions  of  10  by  12  feet,  with  all  these 
persons  in  sight  of  the  ballot-box,  and  when  Sammons,  Mr.  Bisbee's 
icarin  supporter,  was  watching  out  for  frauds  against  the  Republican 
party,  as  he  testifies,  to  conclude  that  the  ballot-box  was  tampered  with, 
or  could  be  tampered  with,  cannot  be  done,  we  submit,  with  any  regard 
for  law  or  evidence. 

6  and  7.  Was  the  ballot-box  in  the  possession  of  the  same  person  who 
had  the  key  during  the  adjournment,  and  was  there  any  fraud  or  ille- 
gality committed  during  the  adjournment  ? 

The  testimony  on  these  points  is  as  follows,  viz : 
For  contestant : 

J.  T.  Walls  swears :    . 

Q.  You  stated  you  were  there  all  day.  Were  yon  there  when  the  polls  closed?  If 
you  were,  state  what  took  place,  if  anything. — A.  I  was  there  when  the  polls  closed. 
They  did  not  proceed  to  count  the  votes  when  they  announced  the  polls  closed.  They 
-svere  about  one-half  hour  preparing  a  tally-sheet,  after  which  they  atljoumed  to  sup- 


I 


214  DIGEST    OF   ELECTION    CASES. 

per.    Tliey  were  gone  about  three-quarters  of  an  hour  to  a  house  kept  as  a  boarding- 
house. 

Edward  Sammons  swears : 

Q.  You  say  that  Virgil  George  took  the  ballot-box  at  the  door  and  all  the  inspectors 
and  yourself  and  the  other  supervisors  and  officers  of  the  election  went  to  Mrs. 
Bnrk's  to  get  supper,  do  you?-— A.  Yes;  and  we  all  went  to  Mrs.  Burk's  to  get  our 
supper. 

Q,  How  far  is  Mrs.  Burk's  from  the  polling  place  ? — A.  I  presume  about  three  hun- 
dred yards. 

Q.  You  said  in  your  direct  examination  that  when  you  came  into  the  house  you  saw 
in  a  room  on  your  right  the  inspector,  Virgil  George,  sitting  with  the  box  in  his  lap 
and  the  other  inspectors  around  him.  Were  there  any  other  persons  in  the  room  be- 
sides the  inspectors,  and  was  the  room  lighted  up  or  not  I — A.  There  was  other  persons 
in  the  room,  and  it  was  lighted  up. 

Q.  How  long  was  it  from  the  time  you  all  left  the  polling  place  to  go  to  supper  be- 
fore you  returned  to  the  polling  place  ? — A.  I  had  no  watch  ;  about  a  half  ob  three- 
quarters  of  an  hour,  I  think. 

Q.  Were  you  inside  of  the  polling  place  all  day  ? — A.  All  day,  except  when  I  went 
out  to  urinate. 

For  contestee : 

J.  E.  Flewellen  swears : 

Q.  Was  the  ballot-box  whilst  at  the  supper-house  at  any  time  kept  in  a  secreted 
condition  ? — A.  It  was  not. 

Q.  Was  it  kept  while  at  the  supper-house  and  while  at  the  polling  place  in  a 
lighted  or  dark  room — in  a  lighted  or  dark  ? — ^A.  The  ballot-box  at  all  times  was  in  a 
lighted  room  and  open  to  the  public. 

Samuel  D.  Eeid  swears : 

Q.  At  the  time  of  taking  the  ballot-box  from  the  polling  place  to  the  supper- 
room,  was  any  protest  made  or  objections  raised  by  the  Republicans,  or  any  of  them, 
to  such  removal? — A.  No  objections  were  made  to  me,  and  if  made  to  otliers  I  did 
not  hear  it. 

Q.  Did  the  Republicans,  or  any  of  them,  insist  on  following  the  box  into  the  supper- 
room  to  see  that  it  was  not  tampered  with,  and  were  they  not  prohibited  or  refused 
admission  into  the  room,  and  was  not  this  refusal  the  cause  of  Trapp's  using  the  lan- 

fuage  you  characterize  as  obscene  ? — A.  There  was  no  one  refused  admission  that  I 
now  of.  On  the  contrary,  I  told  them  that  they  could  go  to  the  doors  and  windows 
and  look  at  it  all  the  time.  A  number  of  the  voters  did  follow  the  box  from  the  poll- 
ing place  to  the  supper-room. 

Q.  Of  this  number,  were  they  mostly  Democrats  or  Republicans,  and  were  they 
or  any  portion  of  them  admitted  into  the  supper-room? — A.  They  came  to  the  doors 
and  windows.  I  did  not  invite  them  in.  There  was  no  guard  to  keep  them  out  and 
no  hinderance  that  I  knew  of. 

Virgil  George  swears: 

Q.  What  was  done  with  the  ballot-box  while  you  were  at  supper? — A.  I  held  the 
box  while  the  two  other  inspectors  were  eating,  in  their  presence.  After  they  were 
through  eating,  I  gave  Mr.  Flewellen  the  box,  and  he  then  held  it  in  the  presence  of 
myself,  Edward  Sammons,  and  Mr.  Reid. 

Q.  Were  there  not  other  Republicans  who  followed  the  inspectors  from  the  polling 
place  to  the  eating-house  where  they  carried  the  box  with  them  to  supper? — A.  Yes, 
sir;  I  did  not  count  them,  but  it  looked  like  there  were  seventy  or  eighty. 

Q.  Was  the  hotel  or  boarding-house  where  you  kept  the  box  lighted  up  or  in  the 
dark? — A.  The  house  was  kejit  lighted  all  the  time. 

Samuel  C.  Tucker  swears : 

We  decided  to  go  to  supper;  that  is,  the  inspectors  and  the  United  States  supervis- 
ors, Edward  Sammons  and  Jno.  G.  Bird.  Mr.  Flewellen  then  handed  the  ballot-box 
to  Virgil  George,  the  Republican  inspector,  and  then  we  proceeded  to  Mrs.  Burk's  to 
get  our  supper,  all  together,  the  inspectors  and  supervisors,  and  we  walked  over  to 
Mrs.  Burk's  in  the  following  order,  as  well  as  I  can  recollect :  Virgil  George,  the  bearer 
of  the  box,  walked  between  Flewellen*  one  of  the  inspectors,  and  Edward  Sammons, 
the  Republican  United  States  supervisor,  and  I  walked  behind  them  to  the  supper- 
table. 

Q.  Were  you  present  with  any  of  the  inspectors  at  supper?— A.  I  was,  until  I  got 
through  eating. 


BISBEE,    JR.,    VS.    FINLEY.  215 

Q.  Where  was  the  ballot-box? — A.  While  myself  and  Mr.  Flewellen,  aud  I  think 
Mr.  Raid,  were  eating,  the  ballot-box  was  in  the  custody  of  Virgil  George,  in  our 
presence,  while  we  were  eating,  and,  to  the  best  of  my  recollection,  Edward  Sammons, 
the  Republican  United  States  supervisor,  was  sitting  by  the  side  of  Virgil  George, 
the  bearer  of  the  box.  I  then  left  the  supper-house,  leaving  the  parties  in  the  same 
position  as  above  stated. 

Q.  What  was  the  character  of  the  election  held  at  Arredonda  on  that  day? — A.  It 
was  of  a  most  quiet  aud  peaceable  character. 

The  law  of  Florida  provides  that  "as  soon  as  the  polls  of  an  election 
«hall  be  finally  closed  the  inspector  shall  proceed  to  canvass  the  votes 
at  such  election,  and  the  canvass  shall  be  public  and  continited  without 
adjournment  until  completedJ^    (Pamphlet  laws  of  1877,  sec.  21.) 

It  was  illegal  therefore  for  the  election  board  to  adjourn  before  com- 
pleting the  canvass  of  the  votes.  But  unless  the  adjournment  is  shown 
to  have  afforded  the  facilities  for  fraud,  or  that  during  it  the  box  was 
concealed  and  tampered  with,  there  is  no  reason  why  the  adjournment 
should  operate  to  taint  or  discredit  the  poll.  There  is  no  witness  pre- 
tends that  any  fraud  was  committed  during  the  adjournment.  The  box 
was  taken  by  the  officers  of  the  election  from  the  polls  to  the  boarding- 
bouse  with  a  large  crowd  following  as  witnesses.  It  was  kept  in  the 
custody  of,  one  of  the  officers  of  the  election,  watched  by  one  or  more  of 
the  other  officers  all  the  time  in  a  public,  open,  well-lighted  room.  The 
testimony  of  Mr.  Sammons  and  Mr.  George  is  conclusive  on  the  point 
that  there  was  no  fraud  or  opportunity  for  fraud. 

But  it  is  contended  by  contestant  that  the  great  falling  off  in  his  vote 
as  returned  at  this  poll  is  evidence  of  fraud.  In  answer  to  this  point 
the  contestce  cites  the  proof  to  show  that  there  was  a  bitter  division 
in  the  Republican  ranks  in  the  precinct,  which  satisfactorily  accounts 
for  the  smallness  of  Mr.  Bisbee's  vote. 

J.  T.  Walls,  contestant's  witness,  swears: 

Q.  Do  you  know  Avhether  or  not  there  were  two  divisions  of  the  Republican  party, 
lieaded  by  separate  tickets,  for  the  legislature  in  Alachua  County  during  the  last  cam- 
paign?— A.  There  were. 

Q.  Were  you  or  not  a  candidate  for  the  State  senate  on  one  of  those  tickets,  and 
the  leader  of  one  of  those  factions  ? — A.  I  was  a  candidate  for  the  senate  on  one  of 
those  tickets,  and  was  the  leader  of  one  of  those  factions. 

Q.  Do  you  know  the  Hon.  L.  G.  Dennis  ? — A.  I  do. 

Q.  Was  he  or  not  a  candidate  of  one  of  these  Republican  factions  above  spoken  of 
for  the  legislature  ? — A.  He  was  a  candidate  on  what  was  known  as  the  Rush  ticket 
for  the  assembly.  Rush  was  a  Republican  candidate,  aud  was  one  of  my  opponents 
for  the  senate,  and  the  other  was  Mr.  J.  B.  Dell,  Democratic  candidate. 

Q.  Was  or  not  the  Hon.  L.  G.  Dennis  an  opposer  or  supporter  of  Mr.  Bisbee  for  Con- 
gress ? — A.  I  suppose  he  was  an  opposer,  from  his  speeches  made  during  the  campaign, 
and  that  was  the  issue  between  the  two  factions,  his  opposition  to  Colonel  Bisbee. 

Q.  Do  you  not  know  that  he  denounced  Bisbee  from  the  stump  during  the  political 
•campaign  in  the  county  ? — A.  I  heard  him  on  several  occasions  denounce  Colonel  Bis- 
bee, and  have  been  informed  that  at  other  times  he  spoke  in  favor  of  Colonel  Bisbee. 
As  to  his  denouncing  him  throughout  the  country,  I  am  unable  to  say,  because  I  do 
not  know. 

Q.  Did  you  not  hear  or  understand  that  there  was  during  the  campaign  some  en- 
deavor made  towards  a  reconciliation  between  Bisbee  and  the  Dennis  faction  ? — ^A. 
The  only  information  I  have  on  that  subject  is  a  letter  that  Dennis  read  at  a  public 
meeting  from  Colonel  Bisbee,  which  letter  requested  Dennis  not  to  speak  at  that 
meeting ;  and,  if  he  did,  not  to  bring  up  local  matters,  but  he  would  like  to  hear  from 
him  on  State  and  national  questions. 

Q.  Did  or  not  Dennis  continue  the  fight  until  the  election  was  over;  ordidhe,  yield- 
ing to  Colonel  Bisbee's  request,  then  cease  to  oppose  him  after  the  reading  of  that 
letter?— A.  The  fight  was  continued  until  the  election  was  over.  The  night  before 
the  election  in  the  town  of  Gainesville,  as  lam  informed,  and  it  was  generally  known 
that  he,  at  a  public  meeting,  openly  denounced  Bisbee  and  stated  that  he  had  not 
supported  Bisbee,  and  advised  his  friends  not  to  do  so.  ,^   -r.       • 

Q.  Do  vou  believe  that  L.  G.  Dennis,  and  do  you  not  know  that  L.  G.  Dennis,  or 
any  one  else,  could  not  make  that  an  issue  in  this  county  at  the  polls  successfully  in 


216  DIGEST  OF  ELECTION  CASES. 

the  last  campaign! — A.  I  believe  and  know  that  L.  6.  Dennis  and  others  opposed 
Colonel  Bisbee  from  the  beginning  of  the  canvass  until  the  day  of  election,  but  to 
what  extent  and  influence  I  do  not  know. 

Q.  Did  yon  or  not  see  any  Republican  tickets  at  Arredonda  on  the  day  of  election 
that  did  not  have  Bisbee's  name  on  them  as  candidate  for  Congress  f — A.  I  did  see 
some  such  tickets  with  Bisbee's  name  not  on  them. 

W.  F.  Rice,  contestee's  witness,  swears : 

Q.  Do  you  or  not  know  that  in  the  political  campaign  that  preceded  the  last  elec- 
tion in  said  county  of  Alachua  the  Republican  party  of  said  county  was  divided  into 
factions,  and  that  those  factions  were  very  much  imbittered  against  each  other? — A. 
It  was  divided  into  factions,  and  there  was  considerable  bitterness  against  each  other. 

Q.  Was  it  or  not  generally  known  that  the  Hon.  L.  G.  Dennis  was  the  leader  of  one 
of  those  factions,  and  J.  T.  Walls  the  leader  of  the  other? — A,  It  was. 

Q.  Do  you  or  not  know,  and  was  it  not  a  matter  of  public  notoriety  in  the  county, 
that  Dennis  was  an  opposer  of  Mr,  Bisbee  for  Congress,  and  that  J.  F.  Walls  was  his 
supporter? — A.  It  was. 

J.  R.  Flewellen,  contestee's  witness,  swears : 

Q.  Were  you  in  Alachua  County  during  the  political  campaign  which  preceded  said 
election  ? — A.  I  was  only  here  a  week  preceding  the  election. 

Q.  Do  you  know  whether  or  not  the  Republican  party  in  said  county  of  Alachua 
was  divided  into  factions  ? — A.  They  were. 

Q.  State  whether  or  not  the  leaders  of  these  respective  factions  were  acrimonious 
and  bitter  towards  each  other. — A.  They  were  very  bitter. 

Q.  How  do  you  know  ? — A.  I  heard  them  abusing  each  other,  and  at  Republican 
meeting,  held  in  the  yard  of  the  United  States  land  office,  in  Gainesville,  on  Saturday 
before  the  election,  the  Walls  faction  of  the  Republican  party  spoke  very  abusively 
indeed  of  the  Dennis  faction  of  the  Republican  party.  Nearly  all  of  the  entire 
speeches  made  by  the  Walls  factien  were  abuses  of  the  Dennis  faction.  Immediately 
on  the  i5lo8e  of  their  speaking  Mr.  Dennis  rose  to  go  on  the  platform,  and  the  Walls 
faction  tore  it  down  to  keep  him  from  speaking.  Also  tore  down  the  tables  on  which 
the  crowd  had  dined.  Mr.  Dennis  got  on  a  large  box,  which  the  Walls  faction  pulled 
out  from  under  him.     Mr.  Dennis  had  to  retire  without  speaking. 

Q.  Do  you  know  whether  Mr.  Bisbee  spoke  there  on  that  day? — A.  I  do  not  know. 

Q.  Please  state  whether  or  not  you  heard  the  Republican  supervisor,  Edward  Sam- 
mons,  and- the  Republican  inspector,  Virgil  George,  make  any  statement  on  the  day  of 
the  election  in  reference  to  its  probable  result,  and  the  cause  of  such  result. — A. 
About  two  o'clock  each  of  them  told  me  that  they  were' sat istied  that  the  Democrats 
had  carried  the  election  here,  because  the  colored  men  had  deceived  them,  and  were 
voting  the  Democratic  ticket.  Ed.  Sammons  remarked  that  he  was  perfectly  dis- 
heartened and  ready  to  give  it  up.  They  repeatedly  repeated  this  from  that  time 
until  the  polls  closed.  , 

Q.  Was  there  any  additional  cause  of  the  probable  defeat  of  the  Republican  party 
at  said  polls  assigned  by  them,  or  either  of  them,  by  attributing  their  defeat  to  any 
individual;  and,  if  so,  what? — A.  They  attributed  it  to  L.  G.  Dennis  splitting  the 
Republican  party  in  this  county. 

Q.  Can  you  state  whether  or  not  the  Democratic  party  were  before  and  at  the  elec- 
tion united  and  harmonious,  or  whether  they  were  divided,  as  you  say  the  Repub- 
licans were  ? — A.  They  were  united  and  harmonious. 

Q.  Do  you  know  if  Captain  Dennis  was  a  supporter  or  opposer  of  Colonel  Bisbee? — 
A.^  I  heard  Mr.  Dennis  abuse  Colonel  Bisbee  in  very  strong  terms.  He  had  printed, 
and  caused  to  be  circulated,  a  fuU  set  of  tickets  with  no  one's  name  on  it  for  Congress, 
which  some  of  said  tickets  were  voted  at  the  Arredonda  precinct. .  These  tickets  were 
circulated  all  over  the  country,  to  my  certain  knowledge. 

Q.  Were  these  tickets  above  spoken  of,  which  you  say  were  blank  for  Congress, 
Republican  or  Democratic  tickets  ? — A.  They  were  Republican  tickets. 

Q.  How  do  you  know  that  any  of  these  tickets  were  voted  at  the  Arredonda  pre- 
cinct ? — A.  I  counted  them  out  of  the  box  when  canvassing  the  vote,  and  saw  them 
to  be  such. 

Q.  Can  you  state  whether  there  were  a  few  or  a  great  many  of  these  tickets  in  cir- 
culation at  Arredonda,  from  your  observation  ? — A.  There  were  a  great  many. 

Samuel  D.  Reed  swears : 

Q.  Do  you  know  L.  G.  Dennis  ? — A.  I  do. 

Q.  Can  you  state  whether  or  not  the  Republican  party  of  Alachua  County,  during 
the  last  political  campaign,  when  a  member  to  Congress  from  this  Congressional  dis- 
trict was. to  be  elected,  was  divided  into  factions,  or  was  it  solid? — A.  It  was  divided 
into  factions. 


BISBEE,    JE.J    VS.    FINLEY.  217 

Q.  Who  were  the  respective  leaders  of  these  factions  T— A.  L.  G.  Dennis,  a  Repub- 
lican, but  anti-Bisbee  man,  was  the  leader  of  our  faction,  and  J.  T.  Walls  was  the 
leader  of  the  Bisbee  faction. 

Q.  Do  you  know  whether  or  not  there  were  a  considerable  number  of  Dennis  tickets 
in  circulation,  and  voted  at  Arredonda  at  said  election  ? — A.  There  were  a  majority  of 
Republican  tickets  on  which  Bisbee's  name  did  not  appear;  they  were  blank  for  Con- 
gressmen.    These  were  known  as  Dennis  tickets. 

Q.  Please  state  how  you  know  that  many  of  the  colored  voters  voted  the  Dennis  or 
blank  ticket  for  Congress.  How  many,  and,  if  possible,  their  names? — A.  I  don't 
know  how  many  voted  it,  nor  the  names  of  those  who  voted  it.  I  only  know  by  see- 
ing the  ballots  in  the  box  when  they  were  canvassed,  and  from  the  fact  that  the  Den- 
nis faction  claimed  the  right  to  be  admitted  to  the  polling-place,  and  to  keep  a  tally- 
sheet. 

Q.  bo  you  know  J.  T.  Walls T— A.  I  do. 

Q.  Was  he  at  Arredonda  on  the  day  of  election  ? — A.  He  was. 

Q.  Did  you  see  and  converse  with  him  on  that  day  ? — A.  I  had  a  conversation  with 
him  that  night  after  the  polls  were  closed. 

Q.  Was  that  conversation  in  regard  to  the  election  at  Arredonda  on  that  day? — A. 
It  was. 

Q.  What  did  he  say  about  that  election  ? — A.  I  asked  him  if  there  had  been  any 
irregularities  in  the  election  on  that  daj'^.  He  said  there  had  not  that  he  knew  of  or 
could  object  to  (I  forget  what  his  language  was),  except  that  it  might  be  considered 
irregular  for  the  inspectors  to  go  to  supper  before  they  counted  the  vote. 

Virgil  George  swears : 

A.  I  heard  Sammons  state  on  the  day  of  election,  about  3  o'clock  p.  m.,  that  he  be- 
lieved the  Republican  party  was  beat,  for  the  reason,  as  he  expressed  it,  that  a  great 
many  negroes  were  voting  the  Democratic  ticket ;  also  that  Dennis  was  stronger  than 
he  thought  for. 

Q.  Was  said  Supervisor  Sammons  a  Republican  or  Democrat  t — A.  He  wad  a  Repub- 
lican. 

Q.  Was  the  Republican  party  united  in  the  last  campaign,  or  was  it  divided  into 
factious  ? — A.  It  was  uot  united ;  it  was  badly  divided. 

Q.  Who  were  the  leaders  of  those  respective  divisions  or  factions? — A.  Mr.  Walla 
was  a  leader  of  one  part,  and  Mr.  L.  G.  Dennis  the  other. 

Q.  Can  you  state  whether  or  not  these  factions  were  very  bitter  against  each  other 
during  the  last  campaign  ? — A.  It  seems  that  they  were. 

Q.  Did  you  attend  any  Republican  political  meetings  during  the  last  campaign  f — 
A.  I  did. 

Q.  Were  there  or  not,  within  your  knowledge,  any  Republican  clubs  in  the  county? — 
A.  Yes,  sir ;  there  were. 

Q.  What  were  they  called?— A,  The  Garfield  Club. 

Q.  Did  you  belong  to  or  attend  any  of  them  ? — A.  I  did  not. 

Q.  State  whether  or  not,  if  you  know,  Mr.  Dennis  was  a  supporter  or  opposer  of 
Mr.  Bisbee  for  Congress?  How  was  he  regarded? — A.  I  understood,  but  did  not  hear 
him  say  so,  that  he  was  opposed  to  Mr.  Bisbee. 

Q.  Did  you  or  not,  during  election  day  at  Arredonda,  in  the  afternoon  of  that  day, 
hear  the  Republican  supervisor,  Edward  Sammons,  express  any  apprehension  orfeara 
that  the  Republican  party  would  be  beat? — A.  I  did,  sir. 

Q.  To  what  cause  did  he  attribute  it  ? — A.  He  said  that  he  felt  that  we  were  getting 
beat,  and  seemed  very  much  disheartened,  and  spoke  of  the  party  being  split  up,  and 
assigned  that  as  a  cause. 

Q.  Were  you  present  at  the  canvass  of  the  vote  at  Arredonda? — A.  I  was. 

Q.  State  whether  or  not,  if  you  recollect  or  observed,  there  were  any  Republicaa 
tickets  in  the  box  which  did  not  have  Mr.  Bisbee's  name  on  them  for  Congress  ? — A> 
There  were  some  there,  but  cannot  say  how  many — did  not  keep  any  count. 

Samuel  C.  Tucker  swears : 

Q.  Do  you  know  whether  or  uot  the  Republican  party  during  the  political  campaign 
which  terminated  in  the  late  Presidential  and  Congressional  election,  the  Republican 
party  in  Alachua  County,  Florida,  was  united  or  divided  ?— A.  They  were  materially 
divided. 

Q.  State  who  were  the  respective  leaders  of  the  factions  of  the  Republican  party 
of  said  county.— A.  They  were  denominated  here  as  the  Dennis  and  Walls  factions. 

Q.  Do  you  know,  or  was  it  a  matter  of  public  notoriety  during  the  late  campaign,. 
that  Dennis  was  a  supporter  or  opposer  of  Mr.  Bisbee  for  Congress  ?— A.  He  was  not 
a  supporter  of  Bisbee,  and  it  was  generally  believed  that  he  exercised  every  effort  in 
his  power  to  defeat  him. 

Q.  Were  there  anv  tickets  in  that  ballot-box  at  the  time  of  the  canvass  which  were 
Republican  tickets, 'that  did  not  contain  the  name  of  Mr.  Bisbee  for  Congress?- A.  I 


218  DIGEST  OF  ELECTION  CASES. 

had  no  access  to  the  box,  and  consequently  had  no  opportunity  of  knowing,  only  as 
the  inspectors  called  them  out,  but  I  saw  a  good  many  tickets  of  that  character  dur- 
ing the  day  distributed  around.  ^ 

Amos  George,  a  colored  voter,  swears : 

Q.  Are  you  a  registered  voter  of  Alachua  County,  and  were  you  such  at  the  election 
held  in  November  last  ? — A.  Yes,  sir. 

Q.  What  was  the  character  of  that  election ;  was  it  a  peaceable  and  quiet  election, 
or  was  it  otherwise? — A.  It  was  as  quiet  election  as  I  ever  saw. 

Q.  Do  you  know  Edward  Sammons  ? — A.  I  do. 

Q.  Did  he  act  in  any  official  capacity  at  the  late  election  in  November  last  ? — A. 
Not  that  I  know  of. 

Q.  Can  you  state  whether  or  not  there  were  a  good  many  supporters  of  the  Dennis 
ticket  at  Arredonda  at  said  election  ? — A.  I  do  not  know. 

Q.  Did  you  or  not  hear  Edward  Sammons  say  anything  about  said  election?  State 
what  you  heard  him  say. — A.  I  heard  him  say  after  the  election  was  over  he  went  to 
Gainesville,  and  the  women  wanted  to  jump  on  him  and  fight  him  for  telling  the  ne- 
groes to  vote  the  Democratic  ticket.  He  told  them  that  he  could  not  help  it;  that  is 
what  I  heard  him  say. 

Q.  Did  he  say  anything  further? — A.  Not  as  I  know  of. 

Q.  Are  you  a  colored  man  or  white  man? — A.  I  am  a  colored  man. 

Q.  Did  you  or  not  vote  the  Democratic  or  Republican  ticket  at  the  last  election? — 
A.  I  aimed  to  vote  the  Democratic  ticket. 

Q.  How  long  have  you  been  a  Democrat  ? — A.  I  have  been  a  Democrat  all  my  days. 

This  testimony  shows  that  there  were  two  candidates  for  the  office  of 
State  senator — Mr.  Walls  and  Mr.  Dennis — running  in  this  district ; 
that  they  headed  very  bitter  and  earnest  and  hostile  factions  of  the  Ee- 
publican  party;  that  the  Walls  faction  favored  Mr.  Bisbee,  but  that  the 
Dennis  faction  was  very  much  opposed  to  him;  that  the  fight  was 
carried  down  till  the  close  of  the  election;  that  Mr.  Dennis,  at  this 
poll,  received  just  the  same  number  of  votes  which  Mr.  Bisbee  fell 
behind  his  ticket ;  that  Mr.  Dennis's  tickets  did  not  have  Mr.  Bisbee's 
came  on. 

Julius  A.  Carlisle  swears  that — 

Having  counted  the  ballots,  there  were  three  hundred  and  thirty  in  the  box. 

Q.  Please  examine,  ascertain,  and  state  if  there  are  any  Republican  tickets  that  are 
"blank  for  member  to  Congress ;  and,  if  so,  state  how  many. — A.  Witness  having  ex- 
amined states  there  are  (85)  eighty-five. 

Q.  Please  examine,  ascertain,  and  state  the  number  of  ballots  in  the  box  for  Jesse 
J.  Fiuley  for  Congress. — A.  The  witness  having  examined  the  ballots,  states:  "There 
are  one  hundred  and  seventy-two  votes  for  Jesse  J.  Finley  for  Congress." 

Q.  Please  examine  and  state  how  many  votes  there  are  in  said  box  for  Horatio  Bisbee, 
jr.,  for  Congress. — A.  The  witness  having  examined  the  ballot-box  statess :  "There  are 
aixty-eight  (08).  There  are  also  five  Republican  tickets  with  Horatio  Bisbee,  jr.'s, 
name  scratched." 

Q.  Please  examine  and  state  the  number  of  votes  for  the  Republican  elector^. — A. 
The  witness  having  examined  the  ballots  states :  "There  are  one  hundred  and  forty- 
eight  (148)  ballots  for  the  Republican  electors  and  two  Republican  tickets  with  the 
Republican  electors  scratched." 

Q.  Please  examine  and  state  the  number  of  votes  or  ballots  for  the  Democratic 
electors. — A.  Witness  having  examined  the  ballots  states:  "There  are  one  hundred 
and  seventy-two  (172)  ballots  for  the  Democratic  electors." 

Q.  Please  examine  and  state  the  number  of  ballots  in  the  box  for  the  Democratic 
•candidate  for  governor. — A.  Witness  having  examined  the  ballots  states :  "There  are 
one  hundred  and  seventy-two  votes  for  the  Democratic  candidate  for  governor." 

Q.  How  many  votes  do  you  find  for  the  Republican  candidate  for  governor ! — A. 
Witness  having  examined  the  ballots  states :  "There  are  one  hundred  and  forty  (140) 
•votes  for  the  Republican  candidate  for  governor,  and  17  scratched,  and  one  with  the 
name  of  the  candidate  for  governor  torn  off.." 

Q.  Please  examine  the  eighty-five  Republican  tickets  which  you  say  are  blank  for 
Congress,  and  state  whether  Leonard  G.  Dennis'  name  appears  on  them,  or  any  of 
them  ;  and,  if  so,  how  many  ? — A.  Witness  having  examined  those  ballots  states : 
■*'  They  all  have  the  name  of  Leonard  G.  Dennis  on  them." 

Q.  For  what  office? — A.  For  a  member  of  the  assembly. 


BISBEE,    JR.,    VS.    FINLEY.  219 

The  evidence,  on  pages  398-399,  shows  330  ballots  in  the  box.  The 
votes  for  governor  shows — 

For  Bloxliam,  Democrat 172 

For  Conover,  Republican '"]'  149 

Scratched 17 

One  with  name  torn  off '_       i 

330 

Making  the  vote  for  governor  equal  to  the  nwnher  of  ballots  in  the  box. 
Again,  on  the  Congressional  ticket,  the  evidence  shows — 

For  Finley 172 

For  Bisbee 68 

Blank  (Dennis's  vote) 85 

Scratched 5 

330 

In  response  to  this  testimony  the  contestant  has  called  and  sworn  260 
persons  who  say  they  voted  for  him  at  this  poll.  But  this  is  contra- 
dicted, first,  by  the  fact  that  Mr.  Dubose,  the  president  of  the  Repub- 
lican club  at  the  place,  swears  there  were  only  164  members  of  that 
organization,  wliich  is  about  the  number  of  votes  polled  by  the  Repub- 
licans ;  second,  by  the  fact  that  only  140  voted  for  the  Republican  can- 
didate for  governor;  third,  by  the  fact  that  the  proof  proves  too  much. 
If  260  voted  for  Mr.  Bisbee,  which  is  the  full  vote  for  Congress,  what 
becomes  of  the  large  vote  concededly  cast  for  Mr.  Finley  ?  But  there 
is  a  grave  objection  to  the  testimony  of  voters  to  show  the  true  state  of 
a  poll  in  such  a  case  as  this,  and  surrounded  by  such  circumstances. 
The  voters  were  mostly  illiterate  and  could  not  read  their  tickets,  and 
the  Dennis  Republican  ticket  did  not  have  Mr.  Bisbee's  name  on  it. 
How  could  they  say  any  more  than  that  they  voted  the  Republican 
ticket  ?  Besides,  not  only  are  political  leaders  liable  to  conceal  their 
cutting  a  party  ticket,  but  ignorant  voters,  who  would  incur  the  odium 
of  their  neighbors  for  admitting  a  deviation  from  the  party  paths,  are 
also  likely  to  deny  the  fact,  and  particularly  when  they  have  the  addi- 
tional shield  for  their  consciences  that  they  may  not  and  perhaps  can- 
not know  certainly  how  they  voted.  Besides,  if  it  is  true  that  the  full 
Republican  vote  was  cast  for  Mr.  Bisbee  at  Arredonda,  and  that  Mr. 
Dennis  did  not  cut  him  to  the  full  extent  of  his  power,  why  is  not  Mr. 
Dennis,  a  prominent  Republican,  called  ?  If  Mr.  Bisbee  really  believed 
that  Mr.  Dennis  and  his  faction  did  not  cut  him,  the  clear,  well-defined, 
and  intelligent  course  would  have  been  to  call  and  swear  him.  Then 
what  we  now  see  through  a  glass  very  darkly  we  could  have  seen  face 
to  face.  But  Mr.  Bisbee  did  not  call  this  prominent  Republican,  Mr. 
Dennis — the  little  giant  of  Alachua — and  I  believe  he  had  a  good  rea- 
son for  the  omission — I  believe  the  preponderance  of  the  evidence  shows 
that  the  election  at  Arredonda  was  a  fair  and  just  expression  of  the 
voters  as  they  actually  cast  their  ballots.  It  is  utterly  immaterial  to 
this  contention  whether  they  intended  to  vote  otherwise  than  they  did. 
If  Mr.  Dennis  got  his  work  in  by  voting  tickets  without  Mr.  Bisbee's 
name  on,  we  cannot  allow  the  persons  who  cast  them  to  vote  over.  In 
the  case  of  Biddle  &  Richard  vs.  Wing,  Nineteenth  Congress,  which 
was  one  of  the  best-considered  cases  ever  decided  by  the  House  of  Rep- 
resentatives, the  committee  very  appropriately  say  on  this  j)oint :  "  The 
committee  are  of  opinion  that  the  duty  assigned  to  them  does  not  im- 
pose on  them  an  examination  of  the  causes  which  may  have  prevented 
any  candidate  from  getting  a  sufficient  number  of  votes  to  elect  him  to 


220  DIGEST   OF   ELECTION   CASES. 

the  seat.  They  consider  that  it  is  only  required  of  them  to  ascertain 
who  had  the  greatest  number  of  legal  votes  actually  given  at  the  elec- 
tion." 

But  suppose  we  admit,  for  the  purposes  of  the  further  discussion  of 
this  point,  that  there  are  some  evidences  of  irregularity  and  illegal  and 
improper  conduct  on  the  part  of  the  oflBcers  of  the  election  at  Arredon- 
da,  we  must  then  inquire  what  is  the  amount  of  iwegularity,  and  what 
is  the  character  of  the  improper  conduct  on  the  part  of  said  officers  re- 
quired by  the  law  to  vitiate  and  set  aside  the  return,  and  permit  almnde 
proof  of  the  votes  cast  ? 

The  law  on  this  subject  is  very  fully  and  clearly  laid  down  by  Mr. 
McCrary  in  his  work  on  Elections,  sec.  302,  wherein  he  states  that  mere 
irregularity  does  npt  vitiate  the  return,  but  only  where  the  provisions 
of  the  election  law  have  been  entirely  disregarded  by  the  ofiBcers,  and 
their  conduct  has  been  such  as  to  render  their  returns  utterly  unworthy 
of  credit,  the  entire  poll  must  be  rejected.  In  such  case  the  return 
proves  nothing,  but  the  legal  votes  cast  at  such  poll  may  be  proven  by 
secondary  evidence;  but  he  states  A^ery  clearly  that  the  return,  until  so 
impeached,  is  the  primary  evidence.  In  support  of  the  doctrine  of  this 
section  (302)  he  cites  1  Chicago  Leg.  News,  230 ;  Brightley's  Election 
Cases,  493 ;  McKenzie  vs.  Braxton,  Forty-second  Congress,  and  Gid- 
dings  vs.  Clark,  ihid. 

In  section  303  of  the  same  book  it  is  said :  "  The  power  to  reject  an 
entire  poll  is  certainly  a  dangerous  power,  and  should  be  exercised  only 
in  an  extreme  case — that  is  to  say,  where  it  is  impossible  to  ascertain 
with  reasonable  certainty  the  true  vote.  It  must  appear  that  the  con- 
duct of  the  election  officers  has  been  such  as  to  destroy  the  integrity  of 
their  returns  and  to  avoid  the  prima  facie  character  which  they  ought 
to  bear  as  evidence  before  they  can  be  set  aside  and  other  proof  de- 
manded of  the  true  state  of  the  vote."  In  support  of  this  doctrine 
three  cases  are  cited  from  1  Brewster,  viz,  Mann  vs.  Cassiday,  Thomp- 
son vs.  Ewing,  and  Weaver  vs.  Givin,  and  the  case  of  Gibbons  vs.  Stew- 
art, from  2  Brewster. 

In  section  304  of  McCrary,  the  language  of  the  sni)reme  court  of 
Pennsylvania,  in  Chadwick  vs.  Melvin,  is  quoted,  which  declares  "  that 
there  is  nothing  which  will  justify  the  striking  out'  of  an  entire  divis- 
ion bu^  an  inability  to  decipher  the  returns,  or  a  showing  that  not  a 
legal  vote  was  polled,  or  that  no  election  was  legally  held."  The  case 
of  Eiddle  and  Eichard  vs.  Wing,  supra,  is  also  cited  as  giving  the  correct 
doctrine,  which  holds:  "Indeed  nothing  short  of  the  impossibility  of 
ascertaining  for  whom  the  majority  of  votes  were  given  ought  to  vacate 
an  election."  (See  also  McCrary,  436,  437,  438.)  Under  the  law,  as  laid 
down  in  these  citations,  does  the  evidence  justify  the  rejection  of  this 
poll  I  Have  all  the  provisions  of  the  election  law  been  entirely  disre- 
garded by  the  election  officers;  and  are  the  returns  utterly  unworthy 
of  credit?  Is  it  impossible  to  ascertain  with  reasonable  certainty  what 
the  true  vote  is,' and  is  it  necessary  to  exercise  the  dangferous  power  of 
rejecting  the  poll,  which  the  law  says  should  only  be  done  in  extreme 
cases?  We  think  not.  But  in  addition  to  the  provisions  of  the  law, 
which  declare  what  kind  and  amount  of  proof  of  fraud  and  illegality 
are  required  to  reject  a  poll,  the  contestee  very  properly  refers  also  to 
those  presumptions  which  the  law  always  throws  around  sworn  officers, 
and  those  equally  important  presumptions  of  law,  which  are  always  in 
favor  of  innocence  and  right  and  against  fraud  and  wrong.  It  is  a  well- 
settled  and  fundamental  principle  of  law  that  in  all  cases  and  at  all 
times,  all  presumptions  are  against  fraud  and  in  favor  of  fairness. 


BISBEE,    JR.,    VS.    FINLEY.  221 

Fraud  is  never  presumed,  even  from  suspicious  circumstances.  When 
charged  it  must  be  proved.  It  is  unnecessary  to  cite  authorities  in  sup- 
port of  this.  What  is  done  by  sworn  officers  in  the  pursuit  and  dis- 
charge of  their  duties  is  always  presumed  to  be  rightly  done,  and  noth- 
ing but  clear  and  convincing  and  unequivocal  proof  can  destroy  the 
credit  and  validity  of  their  official  acts.  (See  McOrary,  section  87  &c.- 
see  also  JSkerrett's  case,  Brightley's  Leading  Cases  on  Elections,'page 
820  and  page  333,  where  the  court  holds  this  language:  ''What  has 
been  done  by  the  sworn  agents  of  the  law  is  always  to  be  presumed 
rightly  done;  and  those  who  seek  to  impeach  the  acts  of  these  func- 
tionaries must  not  expect  to  be  entertained  if,  instead  of  bringing  posi- 
tive, tangible,  and  direct  charges,  they  content  themselves  with  gen- 
eral, argumentative,  and  theoretic  imputations.") 

THE  NEWNANSVILLE  POLL. 

This  poll  is  assailed  on  the  charge  of  fraud,  and  contestant  asks  that 
the  return  be  rejected  as  evidence,  and  that  no  votes  shall  be  counted 
for  either  party  except  such  as  have  been  proven  by  testimony  aliunde 
the  return. 

The  return  gave  Mr.  Bisbee  150  votes  and  Mr.  Finley  146  votes.  What 
is  the  fraud  charged  against  the  return  upon  which  it  is  asked  to  re- 
ject it  ? 

First.  That  29  more  votes  were  found  in  the  ballot  box  than  there 
were  names  on  the  poll-list. 

Second.  That  one  witness  swears  that  "  we  found  two  tickets  folded 
together ;  we  cannot  tell  whether  they  were  so  when  they  were  put  in 
or  not." 

^  Third.  That  in  drawing^  out  the  excess  of  tickets  in  the  box  in  con- 
formity to  law  there  may  have  been  more  Eepublican  votes  extracted 
than  Democratic. 

To  show  on  what  a  frail  foundation  the  contestant  proposes  to  base 
his  case  in  this  instance,  we  will  reproduce  the  whole  testimony  of  his 
own  witness,  Edward  Taylor,  who  was  the  Eepublican  manager  at  this 
poll. 

Edward  Taylor,  a  witness  produced  and  sworn,  testified  as  fol- 
lows : 

Question.  What  is  your  name,  place  of  residence,  and  color? — Answer.  My  name  is 
Edward  Taylor ;  I  live  in  district  No.  3  ;  I  am  a  colored  man. 

Q.  Are  you  a  registered  voter  of  Alachua  County,  Florida  f — A.  Yes. 

Q.  Did  you  vote  at  the  election  held  on  the  2d  of  November  last;  if  so,  whatticket 
did  you  vote,  Democratic  or  Republican,  and  where  did  you  vote  ? — A.  I  voted  at 
Newnansville ;  I  voted  the  Republican  ticket. 

Q.  Did  you  vote  for  member  of  Congress  for  the  second  Congressional  district  of 
Florida  at  the  last  electidn,  and  for  whom  did  you  vote  ? — A.  I  did;  I  voted  for  Hora- 
tio Bisbee. 

Q.  Did  you  hold  any  official  position  at  that  election;  if  so,  what  was  it  T — A.  Yes; 
I  was  one  of  the  managers  of  the  box  at  Newnansville. 

Q.  V^'ere  you,  or  not,  present  all  day  at  that  election  when  the  votes  were  polled? — 
A.  I  was  present  all  day,  during  the  voting,  and  the  counting  of  the  votes  after  the 
polls  were  closed. 

Q.  Do  you,  or  not,  know  of  any  ballot*  being  taken  out  of  the  ballot-box  ?  If  so, 
state  fully  all  you  know  about  it.— A.  We  first  proceeded  to  count  the  votes  one  by 
one.  Mr.  Hodge,  one  of  the  inspectors,  counted  the  votes  first ;  then  I  counted  them. 
Mr.  Hodge  counted  one  hundred  and  fifty  and  I  counted  one  hundred  and  seventy-one. 
Then  we  put  them  in  the  ballot-box  and  stirred  them  up  ;  we  went  and  tore  up  and 
destroyed  all  the  ballots  more  than  there  were  names  on  the  tally-list ;  there  were 
twenty -nine  more  tickets  in  the  box  than  there  were  names  on  the  tally-list. 

Q.  How  did  it  happen  that  there  were  twenty-nine  ballots  more  in  the  ballot-Vox 
than  there  were  names  on  the  tally -list  ? — A.  We  cannot  exactly  account  for  it ;  we 


222  DIGEST    OF    ELECTION    CASES. 

found  two  tickets  folded  together ;  we  cannot  tell  whether  they  were  so  when  they 
were  put  in  or  not. 

Q.  When  these  twenty-nine  ballots  were  taken  out  of  the  box  were  they  folded  up, 
or  were  they  open  ? — A.  Twenty -one  of  them  were  folded  ;  eight  were  opened. 

Q.  Do  you  know,  of  your  own  knowledge,  whether  these  tickets  that  were  destroyed 
were  Democratic  tickets  or  Republican  tickets  ?  State  fully. — A.  There  were  some 
of  each. 

Q.  How  many  Democratic  tickets  were  there,  and  how  many  Republican  tickets 
were  there  taken  out  and  destroyed? — A.  I  can't  tell  how  many  of  each  there  were 
taken  out;  I  know  there  were  some  each. 

Q.  Who  took  these  twenty-nine  tickets  out  of  the  box  and  destroyed  them? — A. 
Geiger  took  out  twenty-one  and  I  took  out  eight. 

Q.  When  these  twenty-nine  tickets  were  taken  out  of  the  box  were  they  folded,  or 
could  it  be  plainly  seen  what  they  were,  Democratic  or  Republican  ? — A.  When  we 
drawed  the  twenty-one  they  were  folded  ;  when  we  drawed  the  eight  they  were  un- 
folded. 

Q.  Do  you  know  whether  the  eight  tickets  you  took  out  of  "the  box  were  Democratic 
or  Republican  ? — A.  There  were  some  of  each. 

Q.  How  many  of  each  ?  State  if  you  know. — A.  The  twenty-one  tickets  were  torn 
up ;  the  eight  were  burned.  I  took  them  up  to  light  my  pipe  with,  and  I  saw  the 
face  of  them,  and  five  of  the  eight  were  Republican  tickets  and  three  of  them  were 
Democratic. 

Q.  Did  you  see  the  two  tickets  that  were  folded  together,  so  as  to  tell  what  they 
were,  Democratic  or  Republican  ? — A.  Yes,  I  saw  them  ;  they  were  Democratic  tick- 
ets. ■ 

Q.  Did  the  Republicans  of  this  district  hare  an  organization  or  club  during  the 
campaign  last  fall  ? — A.  Yes ;  I  don't  know  how  many  belonged  to  it. 

Q.  Is  it  not  true  that  the  election  held  on  the  2d  day  of  November,  at  Newnansville, 
was  conducted  fairly  and  legally, and  without  any  fraud  whatever? — A.  Yes,  sir;  as 
far  as  the  managers  were  concerned. 

Q.  State  whether  or  not,  when  the  votes  were  counted,  the  managers  canvassed 
them  with  the  utmost  fairness  without  regard  to  political  character,  and  in  the  de- 
struction of  the  overplus  ballots  cast  they  were  draAvn  from  the  box  by  and  with  the 
consent  of  each  inspector  without  any  knowledge  as  to  whether  they  were  Democratic 
or  Republican  ballots,  and  whether  or  not  the  destruction  of  said  ballots  was  done  for 
the  purpose  only  of  making  the  tally-sheet  of  voters  correspond  to  and  with  the  num- 
ber of  ballots  cast  f — A.  They  were. 

Q.  State  whether  or  not  any  legal  voters  were  rejected  from  the  polls.  On  the  con- 
trary, was  not  every  voter  at  said  precinct  who  was  legally  authorized  to  do  so  per- 
mitted to  cast  his  ballot  quietly  and  peaceably  ? — A.  They  were. 

Q.  State  whether  or  not  the  election  at  said  precinct  on  said  day  was  quiet,  peace- 
able, and  orderly. — A.  It  was. 

Valentine,  a  deputy  marshal,  one  of  contestant's  witnesses,  who  was 
a  political  friend  and  supporter  of  contestant,  swears,  on  p.  26  of  the 
Eecord : 

Well,  the  votes  were  counted  out,  and  then  there  was  more  votes  in  the  ballot-box 
than  there  was  names  to  balance  with ;  then  the  votes  was  all  put  back  into  the 
ballot-box,  and  shaken  together,  and  then  they  put  their  hand  into  the  box  and  took 
out,  I  think,  twenty -nine  votes  to  make  the  number  even  on  the  list.  I  thought  they 
tried  to  do  it  fair. 

This  witness  further  testifies  that  there  were  several  counts  of  the 
votes  and  several  drawings  from  the  ballot-box  to  make  the  number  of 
ballots  in  the  box  correspond  with  the  number  of  names  on  the  poll-list, 
as  the  law  requires.    He  further  testifies,  on  same  page,  26  of  Kecord  : 

I  do  not  know  whether  they  (the  ballots  in  excess)  were  Democratic  or  Republican; 
they  were  not  looked  at.  As  far  as  I  could  see,  everything  went  right,  excepting  one 
man  was  objected  voting,  but  they  let  him  vote ;  that  was  all  I  see. 

In  connection  with  this  testimony  we  cite  the  law  of  Florida  applica- 
ble to  the  subject,  which  provides : 

As  soon  as  the  polls  of  an  election  shall  be  finally  closed,  the  inspectors  shall  pro- 
ceed to  canvass  the  votes  cast  at  said  election,  and  the  canvass  shall  be  public  and 
continued  without  adjournment  until  completed. 

The  votes  shall  be  first  counted ;  if  the  number  of  ballots  shall  exceed  the  number 
of  persons  who  shall  have  voted,  as  may  appear  by  the  clerk's  list,  the  ballots  shall  be 


BISBEE,    JR.,    VS.    FINLEY.  223 

replaced  in   the  box,  and  one  of  the  inspectors  shall  publicly  draw  out  and  destrov 
unopened,  so  many  of  such  ballots  as  shall  be  equal  to  such  excess. 

The  testimony  of  the  contestant  himself  shows  that  the  excess  of  bal- 
lots in  the  box  were  drawn  out  under  the  supervision  and  with  the  con- 
sent of  both  inspectors,  and  strictly  in  accordance  with  the  law  which 
instead  of  implying  fraud  from  such  an  excess,  attributes  it,  in  conform- 
ity to  the  spirit  of  common  sense  and  fairness,  to  the  mistakes  of  the 
clerks  or  electors.  It  is  shown  that  the  election  was  conducted  fairly 
and  legally,  and  without  any  fraud  on  the  part  of  the  officers  of  election  ^ 
that  the  votes  were  fairly  and  honestly  canvassed  and  counted ;  that 
every  legal  voter  was  permitted  to  vote;  that  the  election  was  quiet, 
peaceable,  and  orderly.  We  have  no  hesitation  in  saying  that  the  claim 
of  the  contestant  to  throw  out  the  whole  vote  of  the  contestee  at  this 
poll  and  count  the  whole  vote  of  the  contestant,  in  view  of  the  testimony 
and  the  law,  is  the  boldest  and  most  unwarranted  demand  that  has  ever 
been  made  of  a  committee  of  elections  in  all  the  diversified  annals  of 
election  cases.  If  a  return  such  as  this,  made  regularly  in  all  respects 
by  sworn  officers,  and  surrounded,  therefore,  by  all  the  strong  presump- 
tions of  honesty  and  integrity  which  attach  to  sworn  official  action,  and 
corroborated  and  confirmed  further,  and  almost  overwhelmingly,  by  the 
testimony  of  the  intelligent  Eepublican  manager  who  helped  to  conduct 
the  election,  and  was  the  watcher  of  the  interests  of  that  party ;  if  such 
a  return  is  to  be  overturned  and  destroyed  by  the  uncorroborated  and 
partisan  testimony  of  one  person,  a  clerk  in  the  government  land-office, 
then  there  may  as  weU  be  an  end  of  election  contests. 

THE  PARKER'S  STORE  POLL. 

The  official  return  of  this  poll  gave  Mr.  Bisbee  151  votes  and  Mr. 
Finley  155  votes. 

The  contestant,  without  one  scintilla  of  testimony  in  the  remotest  way 
attacking  or  assailing  the  correctness  of  this  return,  proposes  to  throw 
it  out.  He  assumes,  without  any  evidence,  that  it  is  fraudulent.  The 
law  says  until  it  is  impeached  by  clear  and  convincing  proof  it  is  itself 
the  primary  evidence  of  the  vote,  and  that  until  it  is  so  impeached  and 
vitiated  and  rendered  worthless  as  evidence,  no  other  evidence  of  any 
kind,  either  of  the  voters  or  otherwise,  can  be  introduced.  It  is  hardly 
worth  while  to  debate  such  a  proposition  as  that  of  the  contestant  in 
this  instance.  If  he  is  right  the  primary  and  fundamental  rule  of  evi- 
dence is  abrogated  and  destroyed.  But  he  not  only  proposes  to  over- 
ride the  laws  of  evidence,  but  he  proposes  to  violate  the  plainest  prin- 
ciples of  common  fairness  and  to  throw  out  all  of  contestee's  votes  and 
count  more  than  all  his  own. 

BREVARD   COUNTY. 

The  contestant  insists  that  the  election  in  this  county  is  illegal  and 
void  on  the  following  grounds : 

1st.  There  were  no  registration  books  provided  and  used  in  the  county, 
and  no  legal  registration  of  the  electors,  as  required  by  law. 

2d.  From  some  of  the  polls  the  certificates  of  the  result  of  the  election 
were  sent  in  to  the  clerk  of  the  court  by  mail  instead  of  being  carried  in 
by  an  officer  of  the  election,  as  the  law  provides.  ^^^^ 

3d.  Because  there  were  nearly  one  hundred  more  votes  returned  than 
there  are  names  on  the  informal  and  illegal  registration  lists  used  at 
the  election. 


224  DIGEST    OF.  ELECTION    CASES. 

Section  T  of  the  amended  statutes  of  Florida  of  1877  provides,  inter 
ulia^  for  "a  well-bound  and  suitable  book,"  in  which  shall  be  written  or 
printed  the  oath  required  to  be  taken  by  electors.  This  book  is  the 
general  registration  book  tbr  the  entire  county,  and  in  it  the  names  of 
all  the  voters,  with  the  date  of  registration^  must  appear.  In  addition 
to  this  book  the  law  requires  a  separate  registration  book  for  every 
•election  district  into  which  the  county  is  divided.  (Section  8,  Laws  of 
1877.) 

In  support  of  the  foregoing  objections  to  the  returns  from  Brevard 
County  the  contestant  relies  upon  the  following  testimony,  taken  by 
himself,  ex  parte,  without  notice,  and  out  of  time : 

J.  A.  McCrory  (Rec,  404, 405),  being  duly  sworn,  testifies  as  follows : 

Question.  What  is  your  name,  age,  official  position,  and  place  of  residence  ? — An- 
swer, My  name  is  James  A.  McCrory ;  aged  26  years;  county  judge  and  deputy  clerk 
-of  court ;  residing  at  Titusville. 

Q.  How  long  have  you  held  each  office  ? — A.  I  have  been  deputy  clerk  eince  August; 
1880,  and  county  judge  since  March,  1881, 

Q,  Where  is  the  county  site  of  Brevard  County,  and  what  election  district  is  it  in  ? — 
A,  Titusville ;  election  district  No,  2. 

Q.  What  is  the  entire  number  of  election  districts  in  Brevard  County  t — A,  There  is 
twelve  election  precincts  or  election  districts, 

Q.  Has  any  of  those  election  districts  been  established  since  November  1,  1880  T — 
A,  No,  none, 

Q.  Have  you  read  and  are  you  acquainted  with  that  provision  of  the  election  laws 
of  Florida  prescribing  a  certain  form  of  registration  book  to  be  used  by  registration 
officers? — A,  Yes. 

Q.  Has  that  book  in  the  form  prescribed  been  provided  for  or  by  or  used  in  Brevard 
County  ? — A.  No ;  not  to  my  knowledge. 

Q.  To  your  knowledge  were  deputy  clerks  or  registration  officers  appointed  by  the 
clerk  of  the  court  in  each  of  the  several  election  districts  on  the  first  Monday  in 
October,  1880,  or  thereafter  during  that  month  t — A.  They  were  appointed,  but  I  can- 
not swear  to  the  time  or  date, 

Q,  Were  those  registration  officers  appointed  for  every  precinct  t — A.  To  the  best 
of  my  knowledge  they  were, 

Q,' Were  lists  of  the  electors  registered  by  those  officers  during  the  month  of  Octo- 
ber, 1880,  returned  to  the  clerk's  office  before  the  day  of  election  ? — A.  To  the  best  of . 
my  knowledge  some  were  and  some  were  not. 

Q,  Were  the  lists  so  returned  bound  in  book  form  or  upon  loose  sheets  of  paper? — 
A,  On  loose  sheets  of  paper. 

Q,  Was  there  written  or  printed  upon  any  or  all  of  those  lists  so  returned  at  the 
time  of  their  return  an  oath  to  this  purpose  or  effect:  "  I  do  solemnly  swear  to  well 
-and  truly  perform  the  duties  of  deputy  clerk  and  registration  officer  according  to  the 
requirements  of  the  constitution  and  laws  of  Florida,  so  help  me  God"  ? — A.  To  the 
best  of  my  recollection  it  was  on  some,  and  on  some  it  was  not, 

Q.  Were  there  written  or  printed  upon  any  or  all  of  these  lists  so  returned  at  the 
time  of  their  return  an  oath  to  this  purport  or  effect :  "  I  do  solemnly  swear  that  I  will 
support,  protect,  and  defend  the  Constitution  and  the  Government  of  the  United 
States  and  the  State  of  Florida  against  all  enemies,  foreign  or  domestic ;  that  I  will 
bear  true  faith,  loyalty,  and  allegiance  to  the  same,  any  ordinance  or  resolutions  of 
any  State  convention  or  legislature  to  the  contrary  notwithstanding,  so  help  me  God"  ? 
— A,  To  the  best  of  my  recollection  it  was  on  some,  and  on  some  it  was  not, 

Q,  Was  there  written  or  printed  upon  any  or  all  of  those  lists  so  returned  any  head- 
ing or  certificate  showing  that  they  were  lists  of  registered  voters,  and  showing  the 
number  or  name  of  the  election  district  or  precinct  from  which  the  said  lists  came  ? — 
A,  There  was  on  some,  and  on  some  there  was  not, 

Q.  From  what  election  precincts  or  districts  were  lists  of  registered  voters  not  re- 
turned by  the  registration  officers  ?-^A.  To  the  best  of  my  knowledge  they  were  pre- 
•  cincts  west  of  the  Saint  John's  Kiver. 

Q.  Were  poll-lists  returned  from  any  precinct  with  the  returns  of  the  election  ? — 
A,  Yes, 

Q,  By  whom  were  the  returns  of  the  election  of  the  various  precincts  brought  to 
the  clerk's  office? — A,  To  the  best  of  my  recollection  they  were  brought  by  inspectors 
of  the  elections  from  all  the  precincts  but  two, 

Q,  What  two  precincts  were  those,  and  in  what  way  did  the  returns  come  to  the 
clerk's  office  from  those  precincts  ? — A,  The  returns  from  precinct  Fort  Drum  (No. 
11),  and  Fort  Prince  (No.  5),  was  sent  by  registered  letter  through  the  mail. 


BISBKE,    JR  ,    VS.    FINLEY.  225 

It  will  be  observed  that  Arr.  McCrory  only  became  deputy  clerk  in 
August,  1880,  and  the  election  was  in  November.  He  does  not  swear 
that  no  registration  book  had  been  provided  and  used  in  Brevard 
County,  but  says  there  was  none  to  his  knowledge.  He  swears  to  the  best 
of  his  knowledge  that  the  registration  oflBcers  were  appointed,  and  that 
to  the  best  of  his  knowledge  some  of  the  registration  lists  were  returned 
to  the  office  and  some  not.  He  swears  also  that  those  returned  were  on 
loose  sheets  of  paper,  but  they  were  the  lists.  He  swears  all  through 
only  to  the  bestof  his  knowledge,  which  is  very  natural  for  a  young  officer 
acting  only  as  deputy  and  for  so  short  a  time.  But  there  is  the  testi- 
mony of  the  sheriff  on  this  subject  introduced  by  the  contestant: 

W.  F.  Richards,  being  duly  sworn,  testifies  as  follows: 

Question.  What  is  your  name  and  what  official  position  do  you  hold? — Answer.  My 
name  is  W.  F.  Richards,  and  am  sheriff  of  Brevard  County,  State  of  Florida. 

Q.  Did  you  receive  from  the  clerk  of  court  of  Brevard  County,  a  few  days  before 
the  last  general  election,  certain  ballot-boxes  and  lists  of  registered  voters  to  be  de- 
livered to  the  inspectors  at  the  different  election  precincts? — A.  I  did. 

Q.  Did  you  deliver,  or  cause  to  be  delivered,  at  each  and  every  precinct,  its  proper 
box  and  list  of  registered  voters  before  the  opening  of  the  polls  on  the  day  of  election  ? 
— A.  I  did  at  all,  except  at  the  Fort  Prince  precinct  (No.  5),  which  I  was  unable  to 
reach  in  time. 

He  swears  that  he  delivered  to  every  precinct  but  one.  Fort  Prince 
]>recinct,  Xo.  5,  the  proper  box  and  list  of  registered  voters  before  the 
opening  of  the  polls  on  election  day.  Therefore  every  precinct  but  the 
one  omitted  had  all  the  papers  necessary  to  hold  a  legal  election. 

Now,  the  contestant  has  put  in  evidence  the  general  returns  for  Bre- 
vard County,  and  all  the  precinct  returns  properly  certified,  including 
Fort  Prince  precinct,  No.  5.  These  returns  will  be  found  in  the  record 
from  pages  1085  to  J 102.  The  returns  from  Fort  Prince  precinct  will 
be  found  on  page  1102,  and  show  that  Mr.  Bisbee  received  8  votes  and 
Mr.  Finley  received  9  votes.  If,  therefore,  the  vote  of  this  i)recinct  is 
illegal  it  can  very  easily  be  ascertained  and  deducted. 

The  contestant  also  put  in  evidence  the  general  return  of  the  county, 
which  is  found  on  page  1085  of  the  record,  and  to  which  is  appended 
the  following  certificate : 

State  of  Florida, 

County  of  Brevard  : 
I  hereby  certify  the  above  is  a  true  and  correct  copy  as  shown  on  the  records  in  the 
clerk's  office,  at  Titusville,  Brevard  County,  Florida. 

In  witness  hereof  I  set  my  haml  and  the  seal  of  my  office  this  the  27th  day  of  De- 
cember, A.  D.  1880. 

A.  A.  STEWART, 
Clerk  Circuit  court  in  and  for  said  County  and  State. 

He  also  put  in  evidence  a  certified  copy  of  the  general  registration 
book,  M  hich  will  be  found  on  page  1090  of  the  record,  and  to  which  is 
appended  the  following  certificate: 

Registration   list  of  Brevard  County. 
State  of  Florida, 

County  of  Brevard  : 
I  hereby  certify  that  this  is  a  true  and  correct  copy  of  the  registration  book  now  in  this 
office. 

In  witness  whereof  I  hereunto  set  my  hand  and  affix  my  seal  of  office,  this  the  27th 
day  of  December,  A.  D.  1880. 

[SEAL.]  A.  A.  STEWART, 

Clerk  Circuit  Cotirt  in  and  for  said  County  and  State. 

This  certified  list  contains  the  names  of  350  voters.    The  general  re- 
H.  Mis.  35 15 


226  DIGEST    OF   ELECTION    CASES. 

turn  shows  that  Mr.  Finley  received  222  votes  and  that  Mr.  Bisbee  re- 
ceived 74  votes. 

All  this  testimony  was  taken  by  the  contestant  ex  parte  and  without 
notice,  but  it  shows  that  there  was  a  substantial  compliance  with  the 
registry  law,  and  that  the  voters  should  not  therefore  be  disfrauchised 
because  of  the  neglect  of  the  officers  who  may  have  failed  to  furnish  in 
all  cases  the  proper  registration  lists.  This  is  the  law  plainly  laid 
down  in  Wheelock's  case  (1  Norris,  297),  which  was  decided  in  Pennsyl- 
vania under  a  statute  like  the  one  in  Florida.  In  Wheelock's  case  it 
appears  that  the  general  registration  list  had  been  made,  and  was  on 
file  in  the  commissioner's  ofBce,  but  there  was  no  registration  list  at  all 
at  the  polls.    In  that  case  the  supreme  court  say : 

To  (lisfranchise  all  the  voters  of  a  township,  as  we  are  asked  to  do  in  this  petition, 
the  facts  on  which  we  are  required  to  act  should  show  a  case  free  from  legal  doubt. 
If  we,  by  our  decision,  should  permit  the  carelessness  or  even  the  fraud  of  officers 
whose  duty  it  is  to  furnish  a  list  of  voters  at  the  elections  to  defeat  the  election  and 
deprive  the  people  of  the  county  of  the  officer  who  wa«  elected  by  a  majority  of 
their  votes,  we  would  thus  make  the  people  suffer  for  an  act  in  which  they  did  not 
participate  and  which  they  did  not  sanction.  In  so  doing,  instead  of  punishiug  an 
officer  for  the  violation  of  the  election  law  we  practically  punish  the  voters  of  the 
county  by  defeating  their  choice  of  a  county  officer  as  declared  at  the  election.  A 
decision  of  this  kind  would  be  fraught  with  danger  by  inciting  unprincipled  or  un- 
scrupulous persons  on  the  eve  of  an  important  election  to  recreate  or  destroy  the  list 
of  voters  or  other  important  papers  in  a  township  in  which  the  majority  may  deter- 
mine the  result  in  the  county.  Rules  applicable  to  contested  elections,  like  other 
legal  rules,  must  be  uniform,  and  the  results  and  consequences  of  decisions  therefore 
determine  their  correctness. 

MARION   COUNTY. 

The  contestant  claims  that  122  votes  not  cast  ought  to  be  added  to  the 
returned  vote  for  him  from  this  county  on  the  ground  that  these  votes 
were  illegally  rejected. 

By  reference  to  this  brief,  page  35,  it  will  be  seen  that  he  attributes 
this  to  the  erroneous  ruling  of  the  election  officers  in  holding  that  un- 
registered voters  could  not  vote.  The  coutestee's  counsel  denies  that 
these  votes  should  be  added  to  the  contestant's  majority  in  this  county ,^ 
and  states  the  law  on  the  subject  to  be  as  follows,  viz : 

In  order  that  a  vote  not  cast  shall  be  counted  as  if  cast  it  must  appear  that  a  legal 
•voter  offered  to  vote  a  particular  ballot,  and  that  he  was  prevented  from  doing  so  by 
fraud,  violence,  or  an  erroneous  ruling  of  the  election  officers. 

The  burden  of  proof  of  all  these  facts  is  upon  the  party  who  seeks  to- , 
have  the  votes  not  cast  counted  for  him.    It  devolves  upon  the  contest-- 
ant  therefore  to  prove  that  each  one  of  these  voters  was  a  legal  voter,  and 
that  his  vote  was  illegally  rejected. 

The  ground  upon  which  it  is  claimed  and  admitted  that  these  122  votes-  \ 
not  cast  were  rejected  was  because  they  had  not  registered,  or  theiri 
names  were  not  found  on  the  registration  list. 

The  election  law  of  Florida  requires  registration  at  least  ten  day* 
before  the  election.    The  law  is  as  follows : 

No  person  shall  be  entitled  to  vote  at  any  election  unless  he  shall  have  been  duly 
registered  at  least  ten  days  previous  to  the  day  of  said  election,  nor  shall  any  one  be- 
permitted  to  vot«  at  any  other  voting  place  or  precinct  than  that  of  the  election  dis- 
trict stated  opposite  hia  name  on  the  county  registration  list.     (See  act  of  legislature 
of  Florida,  1877,  pam.,  p.  69,  sec.  3.) 

Primafacie,  all  persons  whose  names  are  not  found  on  the  registration 
list  are  not  legal  voters ;  and  in  order  to  entitle  them  to  vote,  their  names 
not  being  on  the  list  of  registration,  it  is  incumbent  on  them  to  maker^ 
every  preliminary  proof  which  the  statute  requires. 


I 


WSBEE,    JR.,    VS.    FINLEY.  227 

The  election  law  of  Florida,  section  7,  page  71  (pam.  act  of  1877), 
provides  as  follows : 

Should  the  name  of  any  person  who  has  been  duly  registered  according  to  the  re- 
quirements of  this  act  not  appear  on  the  registration  list  of  the  election  district  in 
which  he  resides,  he  shall,  ou  otferiug  to  vote  at  the  voting  place  or  precinct  in  such 
election  district,  be  required  to  state  under  oath  that  he  is  twenty-one  years  of  at^e  • 
that  he  has  resided  in  the  State  of  Florida  one  year,  and  in  the  county  six  months '; 
that  he  was  duly  registered  at  least  ten  days  before  the  election,  and  that  he  has  not 
changed  his  place  of  residence  to  any  district  other  than  the  one  in  which  he  was  liv- 
ing when  he  registered,  or  if  he  has  changed  his  place  of  residence  since  such  registra- 
tion, that  he  notified  the  clerk  of  the  circuit  court  of  the  fact  of  such  change  in  ac- 
cordance with  the  requirements  of  the  first  section  of  this  act.  He  shall  also  be 
required  to  produce  two  qualified  electors  of  the  election  district  in  which  he  offers  to  vote, 
who  shall  be  personally  knoicn  to  at  Uasi  two  of  the  inspectors,  and  who  shall  each  declare 
vnder  oath  that  such  person  does  lire  in  the  election  district  in  tchich  he  offers  to  vote,  and. 
has  resided,  to  their  knowledge,  in  Florida  one  year,  and  in  the  county  six  months,  next  pre- 
ceding the  eleolion  ;  whereupon  the  rote  of  such  person  shall  be  received. 

The  Record,  from  p.  410  to  p.  672,  which  is  oflfered  by  contestant  to 
establish  this  list  of  votes  (as  claimed  by  his  brief  from  p.  37  to  p.  41), 
does  not  show  that  they  made  th\s  preliminary  proof  us  required  by  the 
above  section  of  the  law,  nor  that  they  oflfered  to  make  such  proof.  In 
addition  to  this,  contestee's  counsel  insists  that  the  evidence  of  contest- 
ant referred  to  is  that  of  unlettered  and  unreliable  witnesses,  conject- 
ural and  hearsay  in  its  character,  and  not  such  evidence  as  should  over- 
come the  legal  presumption  that  the  election  officers  did  their  duty, 
especially  when  no  fraud  is  charged  or  proven. 

The  Record,  pp.  531  and  532,  gives  a  list  of  such  of  contestant's  wit- 
nesses, amounting  to  97  of  the  222  votes  not  cast,  which  he  claims  ought 
to  be  added  to  his  vote  in  Marion  County,  the  proof  of  whose  illegal 
rejection  depends  entirely  on  ex  parte  affidavits,  which  affidavits  will  be 
found  in  the  Record  from  p.  562  to  p.  672.  These  affidavits  are  not  com- 
petent evidence,  and  they  do  not  show  that  these  parties  oflfered  to  make 
the  oatli  required  by  the  State  of  Florida  {sec.  7  of  the  act  of  1877),  or 
that  they  were  legal  voters. 

But  whether  these  votes  were  rejected  proi>erly  or  improperly,  it  is 
very  plain  that,  having  been  rejected,  under  the  law  they  cannot  he 
counted  unless  each  voter  has  adduced  in  the  contest  the  same  proof  in 
every  respect  which  would  have  entitled  him  to  vote  at  the  polls  on  the 
day  of  election.  What  then  would  have  been  required  of  each  one  of 
these  voters  whose  names  did  not  appear  on  the  registry  list!  The  law 
says  that  each  one  "  shall,  oii  oflfering  to  vote  at  the  voting  place  or  pre- 
cinct in  such  election  precinct,  be  required  to  state  under  oath:  (1)  that 
he  is  twenty  one  years  of  age;  (2)  that  he  has  resided  in  the  State  of 
Florida  one  year,  (3)  and  in  the  county  six  months;  (4)  that  he  was  duly 
registered  at  least  ten  days  before  the  election ;  (5)  and  that  he  has  not 
changed  his  place  of  residence  to  any  district  other  than  the  one  in 
which  he  was  living  when  registered,  (6)  or  if  he  has  changed  his  place 
of  residence  since  such  registration  that  he  has  notified  the  clerk  of  the 
circuit  court  of  the  fact  of  such  change.  These  are  six  requirements 
which  are  necessary  and  indispensable  to  the  legal  qualification  of  any 
person  whose  name  is  not  on  the  registration  list.  The  testimony  is  not 
very  clear  what  the  rejected  voters  in  this  instance  oflfered  to  do  at  the 
time  they  proposed  to  vote  on  the  day  of  election.  If  they  were  ready 
and  willing  to  swear  to  all  these  six  matters,  then  they  should  have 
been  allowed  to  vote.  There  is  no  doubt  about  this.  But  having  been 
refused  by  the  election  board,  although  wrongfully,  can  they  be  counted 
now  unless  they  have  subsequently  made  the  same  proof  during  the 
contest  and  have  it  now  before  the  committee?     We  think  not.    The 


228  DIGEST    OF    ELECTION   CASES. 

proof  which  has  been  offered  Iq  all  the  various  cases  does  not  in  any 
case,  so  far  as  we  have  been  able  to  discover,  come  up  to  the  require- 
ments of  the  law.  These  votes,  therefore,  although  it  is  possible  they 
may  have  been  and  are  now  legal  votes,  must  be  rejected.  We  can- 
not ignore  any  one  of  the  muniments  of  the  electoral  privilege,  which 
should  be  guarded  as  well  to  keep  out  illegal  votes  as  to  insure  the  right 
to  those  who  are  entitled  to  vote  under  the  law. 

MARION  COUNTY. 

Moss  Bluff  poll. 

Contestant  claims  that  fraud  was  committ«d  at  this  poll  by  counting  votes  for  con- 
testee  which  were  not  cast. 

In  Marion  Countyfreject  return  at  Moss  Bluff  poll  and  deduct  Finley's  majority,  59. 

To  prove  that  contestee's  name  was  not  on  the  ballots  reference  is 
made  to  the  testimony  of  William  A.  Meadows,  United  States  sui^er- 
visor.  (Rec,  pp.  513,  516;  George  Setters,  Rec,  pp.  516,  518;  C.  H. 
Heath,  Rec,  pp.  518,  519.) 

The  evidence  of  contestant  to  establish  this  fraud  is  not  suflBcient. 

The  testimony  upon  which  contestant  relies  to  reject  this  poll  is  that 
of  William  A.  Meadows,  a  supervisor,  George  Sellers,  an  unlettered 
colored  man,  and  Caleb  H.  Heath,  a  United  States  deputy  marshal. 
(See  Rec.  from  p.  513  to  p.  519.) 

None  of  them  swear  that  there  was  a  single  Democratic  ticket  in  the 
box  which  did  not  have  contestant's  name  on  it  for  Congress,  when  the 
act  of  Congress  requires  them  to  do  so.     (See  sees.  2017,  2028,  Rec.) 

If  these  tickets,  voted  by  the  Democrats,  did  not  have  Finley's  name 
on  them  for  Congress,  is  it  not  strange  that  these  partisan  Republicans, 
the  supervisor  and  deputy  marshal,  should  stand  there  and  not  exam- 
ine the  tickets  as  they  were  publicly  canvassed  by  the  inspectors? 

Meadows,  the  supervisor,  swears  that  he  did  not  examine  but  one 
Democratic  ticket,  and  that  he  does  not  know  that  it  was  voted.  Sel- 
lers swears,  and  so  does  Meadows,  that  the  votes  were  counted  openly, 
honestly,  and  correctly.     (See  Rec,  pp.  511  and  518.) 

The  contestant  only  proves  that  on  a  table  near  by  there  were  a  num- 
ber of  Democratic  tickets  which  did  not  have  Finley's  name  on  them  for 
Congress,  but  were  blamk  for  Congress.  He  does  not  prove  that  any  of 
these  tickets  were  voted.  To  suppose  that  all  the  Democratic  tickets 
which  were  voted  at  the  Moss  Bluff  poll  did  not  have  Finley's  name 
on  them  for  Congress,  without  proof  of  that  fact,  and  that  they  were 
counted  by  the  sworn  officers  of  the  election  as  though  his  name  was 
on  them,  would  be  to  suppose  or  infer  a  crime  on  the  part  of  these  sworn 
officers  without  proofs  and  even  without  i)robability.  This  would  be  in 
gross  violation  of  the  principle  of  law  which  presumes  that  the  officers 
performed  their  duty  honestly  and  legally.  The  claim  of  the  contestant 
to  throw  out  all  the  returned  vote  for  Finley  from  the  "Moss  Bluff" 
poll  in  Marion  County  is  too  ridiculous  to  admit  of  argument. 

McCrary  says,  in  section  371,  "when  a  vote  has  been  admitted,  some- 
thing more  is  required  than  to  throw  doubt  upon  it."  The  evidence  of 
contestant  is  not  sufficient  even  to  raise  a  doubt. 

NASSAU  COUNTY. 

Section  108,  Revised  Statutes  United  States,  provides  as  follows : 

The  party  desiring  to  take  a  deposition  under  the  provisions  of  this  chapter  shall 


BISBEE,    JR.,    VS.    FINLEY.  229 

give  the  opposite  party  notice  in  writing  of  the  time  and  place  of  taking  testimony, 

Section  125  of  the  Kevised  Statutes  United  States,  provides  that— 

The  notice  to  take  depositions,  with  the  proof  or  acknowledgment  of  the  service 
thereof,  and  a  copy  of  the  subpceaa,  where  any  has  been  served,  shall  be  attached  to 
the  depositions  when  completed. 

We  have  carefully  examined  the  record,  and  find  no  notices  as  required 
by  the  acts  of  Congress  referred  to.  And  their  absence  is  not  accounted 
for.     (See  record,  from  p.  798  to  p.  817.) 

None  of  the  testimony  from  this  county  can  therefore  be  considered, 
aud  the  vote  must  stand  as  returned. 

BRADFOKD   COUNTY. 

The  contestant  asks  that  87  votes  be  deducted  from  Finley's  vote  in 
this  county,  on  the  grouud  that  the  voters  were  not  registered. 
His  notice  of  contest  in  this  county  is  as  follows : 

BRADFORD  COUNTY. 

That  in  this  county,  at  each  poll  in  said  county,  five  Republican  voters  oiTered  to 
vote  for  me,  whose  votes  were  refused ;  that  five  Republican  voters  at  each  poll  were 
prevented  from  voting  for  me  by  fraud,  intimidation,  violence,  and  threats  of  violence ; 
that  five  persons  voted  for  you  who  were  non-residents,  and  five  other  persons  voted 
for  you  at  each  poll  who  were  minors,  and  five  other  persons  voted  for  you  at  each 
poll  who  had  been  convicted  of  an  infamous  crime,  and  five  other  foreign-born  persons 
voted  for  you  at  each  poll  without  producing  their  naturalization  papers.  That  at 
Starke  poll,  in  said  county,  your  political  friends,  by  fraud,  violence,  intimidation, 
threats  of  violence,  discharging  fire-arms,  and  other  acts  of  lawlessness  and  disorder, 
on  and  immediately  preceding  the  day  of  election,  overawed  and  terrorized  Republican 
voters  and  intimidated  them  from  coming  to  the  polls,  and  thereby  aflPected  the  result 
of  the  said  election  at  said  poll.  I  shall  ask  that  the  returns  from  this  poll  be  rejected 
as  evidence  of  the  vote  cast,  and  the  election  be  set  aside. 

From  the  above  notice  of  contest  it  will  be  seen  that  the  ground  of 
non-registration  is  not  embraced  in  his  pleading.  There  is  not  even  an 
allusion  to  this  ground.  And  this  is  the  only  ground  with  which  con- 
testant undertakes  to  assail  Bradford  County. 

Aside  from  the  fact  that  the  evidence  relied  on  by  contestant  is  wholly 
inadequate  (being  altogether  inferential),  we  cannot  set  the  dangerous 
precedent  that  a  party  to  a  contest  can  disregard  his  pleading  and 
I)rove  that  which  he  does  not  pretend  to  allege.  Besides,  the  record 
shows  that  there  was  no  original  testimony  taken  in  this  county,  and 
that  the  contestant  took  all  his  testimony  in  the  ten  days  allowed  for 
taking  testimony  in  rebuttal  when  there  was  nothing  to  rebut. 

The  vote  of  Bradford  County  must  unquestionably  stand  as  returned. 

ORANGE   COUNTY. 

Mellanmlle  poll. 

The  contestant  claims  that  33  Eepublican  electors  duly  offered  to  vote 
and  that  their  votes  were  illegally  refused  at  this  poll. 

Be  examination  of  the  record  as  to  this  county,  from  p.  748  to  p.  764, 
we  find  that  there  is  no  notice  to  take  testimony  attached  to  the  deposi- 
tions in  accordance  with  the  requirements  of  section  125  of  theEevised 
Statutes  of  the  United  States.  No  evidence  in  this  coicnty  can  be  con- 
sidered. 

The  record  also  shows  that  none  of  the  33  voters,  who,  it  is  claimed 


230  DIGEST    OF    ELECTION    CASES. 

were  not  allowed  to  vote  because  their  names  did  not  appear  on  the 
registration-list,  tendered  the  proof  required  by  section  9  of  the  election 
laws  of  Florida  above  quoted  as  to  Marion  County.  And  hence,  not 
being  shown  to  be  legal  voters  by  the  laws  of  Florida,  they  cannot  be 
added  to  contestant's  vote. 

ORANGE   COUNTY. 
Fort  Christmas  poll. 

It  is  claimed  that  the  whole  vote  of  this  poll  should  be  rejected  on  the 
ground  that  the  precinct  return  does  not  show  that  it  was  signed  by  the 
inspectors  of  this  poll.    There  is  no  fraud  alleged  as  to  this  omission. 

The  contestant  makes  the  proof  by  the  parol  evidence  of  a  single  wi  tness 
that  the  returns  from  this  poll  were  included  in  the  county  canvass. 
This  is  not  the  best  evidence,  yet,  if  we  take  it  as  admissible  evidence, 
the  presumption  of  law  is  that  the  county  canvassers  properly  and  legally 
admitted  the  returns  from  this  poll  in  the  absence  of  proof  to  the  con- 
trary. The  election  laws  of  Florida  require  that  the  poll-list,  the  oaths 
of  the  inspectors  and  clerk,  and  the  registration  list  of  the  precinct  be 
returned,  as  well  as  the  certificate  of  the  vote,  by  the  precinct  officers. 
From  some  or  all  of  these  papers  it  might  well  appear  to  the  board  of 
county  canvassers  that  the  returns  from  any  given  precinct  were  au- 
thentic. 

It  would  be  against  the  well-established  law  to  reject  this  poll  on  that 
ground.  Nothing  can  be  more  familiar  than  the  rule  laid  down  by  Mc- 
Crary,  sections  87  and  91 : 

It  is  well  settled  that  the  acts  of  public  officers  withiu  the  sphere  of  their  duties 
must  be  presumed  to  be  correct  uutil  the  contrary  is  showu. 

It  is  presumed  that  the  county  canvassing  board  properly"  canvassed 
the  vote  of  this  county,  there  being  no  evidence  to  the  contrary. 

It  is  further  claimed  by  the  contestant  that  this  poll  ought  to  be  re- 
jected on  the  ground  of  intimidation  and  violence. 

On  p.  762  of  the  Record  will  be  found  the  evidence  which  contestant 
offers  to  sustain  this  charge. 

Tbere  is  not  a  scintilla  of  evidence  in  this  to  show  that  any  voter  was 
intimidated  or  interfered  with  or  hindered  in  any  way.  There  is  no 
evidence  of  any  violence  or  disturbance  at  this  ])oll. 

It  follows  that  Fort  Cbristmas  poll,  in  Orange  County,  should  be 
counted  as  returned. 

In  addition  to  the  above  reasons  for  leaving  Orange  County  stand  as 
returned,  we  find  from  the  record  that  all  the  evidence  taken  in  this 
county  by  contestant  was  "ejp  parte,^^  and  taken  in  the  ten  days  when 
contestant  is  allowed  by  act  of  Congress  to  rebut.  No  original  testi- 
mony had  been  taken  in  said  county,  and  consequently  there  was  noth- 
ing to  rebut.  For  this  reason  also  the  returns  from  this  county  should 
stand  undisturbed. 

MADISON   COUNTY. 

We  have  already  in  the  commencement  of  this  report  disposed  of  the 
two  polls  in  this  county  which  contestant  in  the  first  point  made  in  his 
brief  claims  that  the  county  canvassers  of  said  county  failed  to  include 
in  their  county  return. 

The  contestant,  in  his  notice  of  contest  (p.  1  of  the  Record),  charges 
as  follows : 


BISBEE,    JR.,    VS.    FIXLEY.  231 

MADISON   COUNTY. 

lu  this  couuty  the  gross  fraud  was  committed  by  your  political  friends  of  stuffing 
the  ballot-boxes  with  ballots  containing  your  name  for  Representative  to  Congress, 
iiud  drawing  out  from  such  boxes  ballots  containing  my  name  for  Representative  to 
Congress,  at  each  of  the  two  polls  in  the  town  of  Madison,  and  at  each  of  the  several 
polls  in  the  said  county  known  as  Cherry  Lake,  Hamburg,  Greenville,  and  the  two 
polls  at  Mosely  Hall,  and  at  each  of  the  other  polls  in  said  county,  whereby  I  was 
cheated  and  swindled  out  of  tive  hundred  or  more  votes.  I  shall  ask  that  the  returns 
from  each  of  said  polls  be  rejected  as  evidence  of  the  true  vote  cast,  and  that  the 
votes  actually  cast  for  me  be  counted  as  cast.  I  shall  ask  that  the  county  canvass  be 
rejected. 

iJd.  That  at  each  of  the  several  polls  in  the  county  of  Madison  t«n  Republican  elect- 
ors offered  to  vote  for  me  whose  votes  were  illegally  refused ;  that  at  each  of  said  polls 
five  Republican  electors  were  prevented  from  voting  for  me  by  fraud,  violence,  and 
intimidation;  that  five  persons  at  each  of  said  polls  voted  for  you  who  were  not  qual- 
ified voters,  because  of  non-residence  ;  that  five  other  persons  voted  for  you  at  each 
poll  who  were  minors  ;  and  five  other  persons  voted  for  you  at  each  poll  who  had 
been  convicted  of  an  infamous  crime. 

We  give  below  the  argument  of  contestant,  quoting  from  his  brief 
from  p.  70  to  p.  77,  in  regard  to  this  countj"^,  and  after  a  careful  exam- 
ination of  the  record  we  submit  that  his  reasoning  is  absurd  and  incon- 
sistent— that  it  is  neither  sustained  by  the  law  nor  the  evidence. 

The  contestant  says  in  his  brief  (p.  70) : 

There  were  six  (6)  election  districts  in  this  county  where  Republicans  had  a  majority. 
The  names  of  these  six  polls  are  Madison  polls  Nos.  1  and  2,  Greenville,  Mosely  Hall 
No.  4,  Cherry  Lake,  and  Hamburg. 

Greenville  poll. 

At  the  first  count  of  the  ballots  at  this  poll  there  were  39  ballots  in  excess  of  poll- 
list.  These  39  being  drawn  out  and  destroyed,  a  second  count  showed  12  more  ballots 
in  excess  of  the  poll-list,  makihg  51  in  alf.  There  can  be  no  reasonable  ground  to 
doubt  that  all  of  the  54  ballots  drawn  out  of  the  box  and  destroyed  were  Republican 
ballots — thus  reduciug  the  Republican  majority  at  this  poll  102  votes. 

The  vote  at  this  poll  should  be  corrected  by  deducting  the  51  in  excess  of  the  poll- 
list  from  coutestee's  vote  and  adding  to  contestant  51  votes.  Also  add  as  tendered 
and  refused  8  votes.  Vote  returned  from  this  poll  was— Finley,  168 ;  Bisbee,  220.  (Rec, 
p.  877.) 

Madison  poll  No.  1. 

The  excess  of  ballots  over  poll-list  at  thispoU  was  53,  and  the  testimony  establishes 
that  52  drawn  out  were  Republican  ballots.  On  the  first  count  of  ballots  there  were 
about  25  in  excess  and  on  second  |count  .53.  This  difterence  in  the  count  was  occa- 
sioned by  the  ballots  falling  apart  or  separating  by  handling,  not  only  at  this  but  at 
the  other  polls. 

Vote  at  this  poll  should  be  corrected  by  deducting  52  ballots  from  Fiuley,  and  add- 
in-r  52  to  Bisbee.  Also  add  one  Republican  vote,  illegally  rejected,  to  Bisbee.  Vote 
returned  was— Bisbee,  256  ;  Finley,  256.     (Rec,  p.  869.) 

Madison  County  poll  Xo.  2. 

The  excess  of  ballots  over  poll-list  at  this  poll  on  first  count  was  14,  which  were 
drawn  out  and  destroyed,  and  they  were  Republican  ballots  so  destroyed.  On  second 
count  there  were  20  niore,  which  were  not  drawn  out,  but  were  counted.  This  would 
reduce  the  Republican  majority  48  at  this  poll.  (Testimony  of  Dennis  Eagan,  Rec,  p. 
.     Testimony  of  Davis  for  contestee,  Rec,  p.  101.)  r..   ,     .        * 

Vote  at  this  poll  should  be  corrected  by  deducting  14  drawn  out  from  Finleys  vote. 
Also,  by  deducting  20  not  drawn  out  from  B'inley's  vote,  and  adding  14  drawn  out  to 
Bisbee's  vote. 

Vote  returned  was— Bisbee,  302;  Finley,  239.    (Eec,  p.  8/1.) 

Cherry  Lale  poll. 

At  this  poll  on  the  first  count  there  were  14  ballots  in  excess  of  the  poll-list,  and  on 
the  second  count  4  more,  making  18  in  all.     Of  these  drawn  out  14  were  Republican, 


232  DIGEST    OF    iLECTION    CASES. 

according  to  the  evidence.  (Testimony  of  Green  B.  Hill,  United  States  deputy  mar- 
shal, Kec,  pp.  91'^,  919.     Testimony  of  Augustus  Johnsou,  Rec,  pp.  920,  924.) 

The  vote  at  this  poll  should  therefore  be  corrected  by  deducting  from  Finley's  vote 
the  one  (1)  vote  cast  by  a  minor,  and  the  14  votes  in  excess  of  the  poll-list,  and  by 
adding  14  votes  in  excess  of  the  poll-list  toBisbee,  and  the  two  (2)  votes  tendered  and 
refused,  making  a  difference  of  31  votes. 

Vote  returned— Bisbee,  172;  Finley,  86.     (Rec,  p.  881.) 

Mosely  Hall  poll,  No.  4. 

At  this  poll  the  excess  was  at  least  14  ballots,  of  which  10,  at  least,  drawn  out, 
were  Republican  ballots,  and  not  less  than  13  Republican  ballots  tendered  and  refused. 
(Testimony  of  Watt  S.  Gheete,  Rec,  pp.  940-942.) 

The  vote  of  this  noil  should  therefore  be  corrected  by  deducting  10  votes  from  Fin- 
ley  and  adding  23  to  Bisbee.     Vote  returned,  Bisbee,  136;  Finley,  90.     (Rec,  (576.) 

The  majority  returned  for  Bisbee  in  the  Mosely  Hall  territory  at  the  two  polls  in 
1880  was  less  by  36  than  in  1878,  and  it  will  be  seen  that  the  correction  as  given  above 
of  No.  4  makes  a  difference  of  33  votes,  or  within  3  votes  of  the  majority  in  1878. 
This  proves  the  great  accuracj'  of  the  correction  according  to  the  evidence,  compared 
■with  the  vote  of  1878. 

Hamburg  poll. 

Contestant  was  unable  to  prove  by  witnesses  the  excess  of  ballots  over  the  poll-list 
at  this  poll,  and  the  specific  numbers  of  votes  lost  by  him  by  the  same  methods  by 
•which  his  vote  was  reduced  at  the  other  polls.  But  ihere  is  other  evidence  showing 
quite  accurately  the  contestant's  loss  at  this  poll. 

Finley.     Bisbee. 

The  vote  returned  from  this  poll  is 192         256 

In  1878  the  vote  returned  was 156         268 

Bisbee's  majority  in  1880,  64.     (Rec,  p.  879.) 

Bisbee's  majority  in  1878,  112. 

Bisbee's  majority  in  1878  over  that  of  1880,  48,  while  the  total  votes  was  greater 
by  24. 

It  will  be  subsequently  shown  that  it  is  proper  to  estimate  the  true  vote  at  a  given 
election  by  taking  that  of  a  prior  election  at  which  no  fraud  was  charged. 

But  there  is  other  evidence.  It  is  proven  that  on  tbe  poll-list  of  this  poll  there  are 
the  names  of  278  known  Republicans  marked  with  an  X.  The  total  number  on  poll- 
list  is  447,  consequently  there  are  on  poll-list  the  names  of  169  Democrats:  278  Repub- 
licans; 169  Democrats  ;  109  Republican  majority  instead  of  64  majority  returned,  a 
difference  in  majority  of  45,  and  3  votes  less  than  the  majority  in  1878. 

Correcting  the  votes  by  the  number  of  known  Republicans  on  poll-list,  and  giving 
to  contestee  all  on  poll-list  not  known  to  be  Republicans  (and  it  will  be  subsequently 
shown  that  such  testimony  is  proper  in  the  absence  of  better),  we  have  its  following 
result : 

Finley.     Bi8l>ee. 

Vote  returned 192  256 

Actual  vote  cast  according  to  poll-list 169  278 

Difference 23  22 

The  vote  at  this  poll  will  therefore  be  corrected  by  deducting  from  Finley  23  votes 
and  adding  to  Bisbee  22  votes. 

Substantially  the  same  result  is  obtained  by  taking  the  vote  of  1878,  or  by  distribu- 
ting the  tweuty-four  votes  in  excess  of  1878  over  that  of  1880  in  proportion  to  its 
vote  of  1878. 

Summarizing  the  differences  in  the  vote  of  the  six  polls  between  the  returns  and  as 
shown  by  the  evidence,  we  have  the  following  : 

Bisbee.  Finley. 

Greenville  poll add  59  deduct  51 

MadisonNo.  1. "  53  "  52 

MadisonNo.2 "  14  "  M 

Cherrv  Lake "  16  "  15 

Mosely  Hall,  No.  4 "  23  "  10 

Hamburg "  22  "  23 

Total 187  185 

Difference 372 

Add  returned  majority 109 

Bisbee's  actual  majority  482  instead  of  109,  as  returned. 


BISBEE,    JR.,    VS.    FINLEY.  233 

The  theory  of  contestant  as  to  Madison  County,  when  analyzed, 
amounts  to  this,  viz  :  He  claims  that  fraud  has  been  proven  against  the 
above  six  polling  places,  and  prays  in  his  notice  of  contest  as  follows : 

In  this  county  the  gross  fraud  was  committed  by  your  political  friends  of  stuffing 
the  ballot-boxes  with  ballots  containing  your  name  for  Representative  to  Congress  at 
each  of  the  two  polls  in  the  town  of  Madison,  and  at  each  of  the  several  polls  in  the 
said  county  known  as  Cherry  Lake,  Hamburg,  Greenville,  and  the  two  polls  at  Moseley 
Hall,  and  at  each  of  the  other  polls  in  said  county,  whereby  I  was  cheated  and  swindled 
out  of  five  hundred  and  more  votes.  I  shall  ask  that  the  returns  from  each  of  said  polls 
he  rejected  as  evidence  of  the  true  vote  cast.  I  shall  ask  that  the  county  canvass  be  rejected  as 
illegal  and  fraudulent.''     (Rec,  p.  1.) 

It  will  be  seen  from  this  that  contestant  prays  "  that  the  returns  from 
each  of  said  polls  he  rejected  as  evidence  of  the  true  vote  cast.""  Yet  in  his 
absurd  though  gainful  calculation  he  constructs  his  whole  theory  in  re- 
gard to  each  of  the  considered  polls  in  Madison  County  upon  the  returns 
which  he  prays  to  have  rejected  as  evidence. 

Suppose,  for  sake  of  argument,  we  grant  his  prayer,  and  reject  the 
returns  from  each  of  these  polls  as  evidence,  on  the  ground  that  their 
credibility  is  destroyed  by  the  proof  of  fraud.  How,  then,  can  either 
party  claim  any  votes  from  any  of  these  precincts,  except  by  proof 
aliunde  of  the  returns  ?    And  there  is  no  such  proof  in  the  record. 

The  position  is  unreasonable  and  grossly  and  palpably  in  violation  of 
the  primary  principles  of  law. 

It  is  contended  in  behalf  of  contestant  in  regard  to  the  Xewnansville 
poll,  in  Alachua  County,  that  the  following  language  (quoted  from  Mc- 
Crary)  gives  the  true  rule  of  law,  viz : 

It  is  very  clear  that  if  the  returns  are  set  aside  no  votes  not  otherwise  proven  can 
be  counted. 

This  we  admit  is  the  true  rule  of  law,  and  it  is  a  gross  inconsistency 
that  would  apply  it  to  Alachua  County  and  would  wholly  depart  from 
it  in  Madison  CJouuty  and  attempt  to  set  up  an  entirely  new  rule,  for 
which  there  is  not  an  authority  or  precedent  in  the  books. 

The  only  way  known  to  the  law  of  disposing  of  such  a  case  is  either 
to  accept  the  returns  or  to  reject  them  ''  in  toto,''^  and  put  both  parties 
upon  the  proof  of  their  respective  vote  "  aliunde."  But  the  contestant 
seeks  to  establish  an  entirely  new  rule,  unknown  to  the  law. 

The  law  cannot  bend  to  suit  the  purposes  of  either  party  to  the  contest. 

There  is  no  principle  of  law  more  clearly  established,  says  McCrary, 

And  the  safe  rule  probably  is,  that  when  an  election  board  are  proved  to  have  will- 
fully and  deliberately  committed  a  fraud,  even  though  it  aflfect  a  number  of  votes  too 
small  to  change  the  result,  it  is  sufficient  to  destroy  all  confidence  in  their  official  acts, 
a»d  to  put  the  party  claiming  anything  under  the  election  conducted  by  them  to  the  proof 
of  his  votes  by  evidence  other  than  th^  return.     (See  McCrary  on  Elec,  p.  174.) 

McCrary,  on  p.  372,  says : 

If  the  fraud  be  clearly  shown  to  exist  to  snch  an  extent  as  to  satisfy  the  mind  that 
the  return  does  not  show  the  truth,  and  no  evidence  is  furnished  by  either  party  to  a 
contest,  and  no  investigation  of  the  committee  to  enable  them  to  deduce  the  truth 
therefrom,  then  no  alternative  is  left  but  to  reject  such  a  return. 

To  use  it  under  snch  a  state  of  facts  is  to  use  as  true  what  is  shown  to  be  false.  (See 
Washburn  vs.  Voorhies,  2  Baftlett,  54.) 

This  statement  of  the  law  is  peculiarly  applicable  to  all  the  precincts 
attacked  in  Madison  County. 

There  are  but  two  wavs  known  to  the  law  of  disposing  of  Madison 
Couiitv— either  to  let  the  returns  stand  as  oflBcially  made,  or  to  discredit 
them  altogether.  For  if  they  are  false  they  cannot  be  used  for  any  pur- 
pose. 

If  they  are  false  let  us  apply  the  above  unquestioned  rule  of  law  to  all 


234  DIGEST  OF  ELECTION  CASES. 

of  the  six  precincts  attacked  in  Madison  County,  viz  :  Greenville,  Madi- 
son poll  No.  1,  Madison  poll  J^To.  2,  Cherry  Lake  poll,  Mosely  Hall  i)oll, 
Hamburg  poll.  The  returns  from  these  respective  polls  give  the  follow- 
ing vote : 

Oreenville,  Rec,  878:  Bisbee,  220;  Fiuley,  168;  Bisbee's  majority 52 

Madison  No.  1,  Rec,  p.  869  :  Bisbee,  256  ;  Finley,  256;  Bisbee's  majority 

Madison  No.  2,  Rec.,  p.  871 :  Bisbee,  302  ;  Finley,  239  ;  Bisbee's  majority 63 

Cherry  Lake,  Rec.,  p.  881:  Bisbee,  172;  Finley,  86;  Bisbee's  majority 86 

Moseley  Hall,  Rec,  876:  Bisbee,  l:{6;  Finley,  90;  Bisbee's  majority.. 46 

Hamburg,  Rec,  879:  Bisbee,  256;  Finley,  102;  Bisbee's  majority 64 

Bisbee's  total  majority  for  above  polls 311 

The  return  from  the  whole  county  of  Madison  (see  Eec,  p.  1055) 
^ives — 

Finley,  1,055;  Bisbee,  1,014;  Finley's  majority 41 

If  the  above  polls  are  rejected,  add, 311 

^Making  Finley's  majority  for  Madison  County,  instead  of  41,  as  reported 352 

No  one  can  escape  this  conclusion. 

But  the  so-called  "  correction'^  which  contestant  makes  of  the  returns 
of  the  above  several  polls  is  very  remarkahlcj  and  leads  to  a  monstrous 
proposition  of  injustice  to  the  contestee,  doubling  the  vote  of  contestant 
l)y  a  strange  process  of  addition  and  suhtr<iction. 

Let  us  take  for  example  Greenville.  Contestant  claims  that  there  were 
51  ballots  in  the  box  in  excess  of  the  poll  list  as  kept  bj'  the  clerk  (which 
the  law  says  shall  be  destroyed  unopened). 

The  proof  is  that  these  51  ballots  were  destroyed  and  not  counted  for 
either  candidate.  This  is  sworn  to  by  contestant's  witness  Stripling,  on 
p.  944  of  the  Rec.  Then,  if  these  votes  in  excess,  which  the  law  of  Florida 
commands  to  be  destroyed  and  not  counted,  were  destroyed  in  con- 
formity to  law,  upon  what  ground  can  contestant  claim  that  thej'  should 
be  deducted  from  Finley's  vote,  when  they  were  never  counted  for 
Finley?  And  he  makes  this  strange  estimate  as  to  all  of  the  above  i)oll- 
ing  places  in  Madison.  Even  if  we  should  admit  that,  from  the  fact 
that  there  were  a  number  of  votes  in  the  ballot-box  at  each  of  these 
polls  in  excess  of  the  poll-list,  there  was  sufficient  evidence  to  warrant 
the  conclusion  that  these  votes  rightfully  belonged  to  contestant,  it 
"would  be  clearly  wrong  to  deduct  them  from  Finley's  vote  when  they 
had  never  been  counted  for  Finley.  Such  a  proposition  could  never  be 
maintained  for  a  moment.  This  observation  is  as  applicable  to  all  the 
above  six  polls  in  Madison  County  which  contestant  has  assailed  as  it 
is  to  the  Greenville  poll. 

As  Madison  County  can  only  be  legally  disposed  of  (as  the  case  is 
made  by  the  contestant)  either  by  entirely  throwing  out  and  ignoring 
the  six  polls  assailed,  or  by  leaving  them  as  returned,  we  do  not  deem 
it  necessary  to  enter  into  a  critical  examination  of  the  evidence  in  re- 
gard to  the  fraud  charged  and  denied  in  this  county.  Suffice  it  to  say 
that  the  record  shows  no  proof  of  fraud  made  as  to  any  of  these  polls, 
except  as  to  Madison  poll  No.  1,  where  the  vote  as  returned  was  a  tie. 

The  testimony  to  refute  the  charge  of  fraud  as  to  this  poll  is  found  in 
the  record  from  page  1009  to  1036.  But  it  can  serve  no  useful  purpose 
to  discuss  this  question,  as  the  vote  from  Madison  County  must  either 
.stand  as  returned  or  be  rejected,  and  in  consequence  of  their  rejection 
-311  votes  should  be  deducted  from  Bisbee's  aggregate  vote  in  the  dis- 
trict, or  added  to  Finley's  aggregate  majority  in  the  district. 


BISBEE,    JR.,    VS.    FINLEY.  235 

HAMILTON   COUNTY. 

The  contestant  claims  as  follows  (see  his  brief,  pp.  102  ami  106.) : 

HAMILTOX   COUNTY. 

Poll  Xo.  3. 

We  ask  that  the  election  at  this  poll  be  set  aside  entirely,  on  the  ground  of  illegal 
and  fraudulent  conduct  on  the  part  of  the  election  officer  and  the  friends  of  coutestee. 
H  in  proven  that  the  polling  place  was  a  scene  of  disorder,  drunkenness,  and  violence,  con- 
tinuing throufjh  the  greater  part  of  the  day,  and  that  the  result  of  the  election  was  affected 
thertbj). 

In  Hamilton  Ctmnty  reject  return  at  No.  3  poll,  and  deduct  Fiuley's  majority,  no 
votes  being  allowed  to  either  party,  68. 

Below  we  append  a  copy  of  the  notice  of  contest,  and  the  copy  of  the 
answer  of  the  returned  member  in  reference  to  this  county.  The  notice 
of  contest  is  as  follows : 

HAMILTON  COUNTY. 

That  in  the  county  of  Hamilton,  at  each  poll  of  said  county,  ten  Republican  elect- 
ors offered  to  vote  for  me,  and  were  refused;  that  ten  other  Republican  electors  at 
each  of  said  polls  oftered  to  vote  for  me  and  were  prevented  by  personal  violence  and 
intimidation  ;  and  I  shall  ask  that  such  votes  be  counted  for  nie  as  if  cast. 

That  at  each  of  the  polls  in  said  county  ten  persons  voted  for  you  M'ho  were  not 
legally  registered  voters ;  that  ten  persons  voted  for  you  at  each  of  said  polls  who  were 
non-residents ;  that  five  persons  voted  for  you  at  each  of  said  polls  who  were  minors  ; 
that  five  persons  voted  for  you  at  each  of  said  polls  who  were  convicted  of  infamous 
crimes;  that  live  other  persons  voted  for  you  at  each  poll,  who  were  of  foreign  birth, 
without  exhibiting  their  naturalization  papers. 

That  at  poll  No.  3,  in  the  county  of  Hamilton,  your  political  friends  sold,  and  caused 
to  be  sold,  intoxicating  liquors  to  the  electors,  whereby  many  of  the  electors  became 
intoxicated  and  riotous  and  disorderly,  and  compelled  electors,  in  a  state  of  intoxica- 
tion, to  vote  for  you  who  otherwise  would  have  voted  for  me.  That  the  authority  of 
the  United  States  supervisors  and  deputy  marshals  were  defied  and  ignored  by  the 
inspectors ;  that  the  inspectors  of  election  acquiesced  in  and  consented  to  scenes  of 
lawlessness  and  disorder,  and  knowingly  allowed  persons  to  vote  for  you  who  were 
not  qualified  voters,  and  refused  to  receive  the  votes  of  those  who  ofieied  to  vote  for 
me  and  were  qualified  electors,  whereby  the  result  of  the  election  was  effected. 

Your  political  friends  at  this  poll  purchased  and  influenced  electors  to  vote  for  you 
by  means  of  bribery,  promise  of  money,  and  other  articles  of  value,  at  the  said  dis- 
trict No.  3,  wh(f  otherwise  would  have  voted  for  me  ;  and  I  shall  ask  that  the  return 
from  this  district  be  rejected  as  evidence  of  the  vote  cast,  and  that  the  election  at 
this  poll  be  entirely  set  aside. 

The  answer  is  as  follows  : 

HAMILTON   COUNTY. 

The  coutestee  denies  that  at  any  of  the  polling-places  within  said  county  of  Hamil- 
ton, at  said  election,  any  qualified  electors  who  offered  to  vote  for  contestant  were 
illegally  refused  the  right  to  vote  according  to  their  choice,  or  that  at  any  polling  place 
in  said  county  of  Hamilton  any  qualified  electors  were  prevented  from  voting  for 
contestant  by  fraud,  violence,  or  intimidation,  or  that  at  any  polling  place  within 
said  county  of  Hamilton  anv  votes  were  cast  and  counted  for  coutestee  of  persons 
disfjualified  by  non-registration  and  who  did  not  comply  with  the  registration  and 
other  laws  as  the  law  allows  ;  or  that  any  votes  were  cast  and  counted  at  any  of  said 
polls  in  said  county  of  Hamilton  for  contestee  of  persons  under  the  age  of  twenty-one 
years,  or  of  persons  who  were  not  resident,  as  the  laws  require  ;  or  of  persons  who 
were  convicted  of  crime  ;  or  of  persons  who  were  foreign  born,  who  were  not  qualined 
to  vote.  ., 

And  the  contestee,  answering  as  to  poll  number  three  (3),  in  said  county  of  Hamil- 
ton, denies  the  allegations  in  the  notice  of  contest  in  respect  to  said  poll,  and  each  ot 
them  ;  and  especially  denies  each  charge  of  improper  and  illegal  conduct  on  the  part 
of  the  inspectors  at'  said  poll,  and  denies  that  said  inspectors  knowingly  contrived, 


236  DIGEST    OF    ELECTION    CASES. 

connseled,  or  connived  at  the  violation  of  law,  by  the  use  of  intoxicating  liquors  or 
otherwise;  or  willingly  acquiesced  in  sceces  of  violence  and  lawlessness  to  defeat  the 
fair  election  at  said  itoll,  »t  knowingly  allowed  persons  to  vote  for  contest ee  who  were 
disqualified  by  law  to  vote;  or  that  the  political  friends  of  contestee  impi'operly,  cor- 
ruptly, and  illegally,  by  bribery  or  other  illegal  and  corrupt  means,  induced  electors 
to  vote  for  contestee,  who  otherwise  would  have  voted  for  contestant  at  said  poll; 
and  denies  that  the  result  of  said  election  -was  changed  by  reason  of  any  of  the  matters 
alleged  by  contestant,  at  said  poll  No.  3,  Hamilton  County,  at  said  election. 

We  quote  the  entire  pleading  of  both  contestant  and  contestee,  as  to 
this  county,  so  as  to  present  the  issue  squarely. 

In  the  record  (p.  ]  183  to  p.  1195)  will  be  found  the  evidence  in  regard 
to  this  count3\ 

It  will  be  seen  that  it  is  all  contestant's  testimony,  taken  in  rebuttal 
when  there  had  been  no  original  testimony  taken  in  this  county,  and 
nothing  to  rebut ;  that  contestee  has  had  no  chance  to  controvert  it. 

What  is  the  issue  presented  by  the  pleading  as  to  this  poll  ?  To  elim- 
inate the  material  allegations  in  the  notice  of  contest,  they  are  as  fol- 
lows, viz : 

1st.  The  contest^e's  political  friends  sold,  and  caused  to  be  sold,  intoxicating  liq- 
uors to  the  electors,  whereby  many  of  the  electors  became  intoxicated  and  riotous 
and  disorderly,  and  compelled  electors,  in  a  state  of  intoxication,  to  vote  for  contestee 
■who  otherwise  would  have  voted  for  contestant. 

This  allegation  is  denied  bj'  the  answer.  Is  it  sustained  by  the  evi- 
dence ? 

The  whole  of  the  testimony  shows  only  one  voter  who  was  led  up  to 
the  poll,  and  there  is  no  evidence,  not  a  scintilla,  that  he  was  compelled 
to  vote  against  his  will,  and  not  a  particle  of  competent  evidence  that 
he  voted  for  the  contestee. 

The  uext  averment  is : 

That  the  aniliority  of  the  United  States  supervisors  and  deputy  marshals  was  defied 
and  ignored  by  the  inspectors. 

What  was  the  legal  authority  of  United  States  supervisors  and  deputy 
marshals  at  a  country  polling  place  like  this  f  Let  us  see.  Section 
2029  of  the  Eevised  Statutes  of  the  United  States  provides  as  fol- 
lows : 

The  supervisors  of  election  appointed  for  any  county  or  parish  in  ajiy  Congressional 
district,  at  the  instance  of  ten  citizens,  as  provided  in  section  two  thousand  and  eleven, 
shall  have  no  authority  to  make  arrests,  or  to  perform  other  duties  than  to  be  in  the 
immediate  presence  of  the  officers  holding  the  election,  and  to  witness  their  proceed- 
ings, including  the  counting  of  the  votes  and  the  making  of  a  return  thereof. 

The  act  of  Congress  defines  and  limits  the  authority  to  the  passive 
duty  of  watching  and  scrutinizing  the  conduct  of  the  election,  and  of 
reporting  any  violation  of  the  election  law.s. 

As  to  deputy  marshals,  the  law  does  not  authorize  or  warrant  the  ap- 
pointment of  any  deputy  marshal,  at  any  election,  except  in  a  city  or 
town  of  20,000  inhabitants  or  upward.     (See  sec.  2021,  Rev.  Stat.  U".  S.) 

What  authority  of  the  United  States  supervisor  and  deputy  marshal 
was  defied  ?  What  does  the  evidence  of  contestant  show!  On  p.  1184 
of  the  Record  the  witness  for  contestant.  Ruckley,  testified  that  a  row 
ensued  in  consequence  of  some  Democrat  leading  a  drunken  negro  to 
the  poll;  and  that  these  doughty  officers,  the  supervisor  and  deputy 
marshal,  were  engaged  in  the  row,  and  actually  commenced  it.  (See  Rec, 
p.  1190.)  On  p.  1186  of  the  testimony  of  same  witness  is  the  evidence 
upon  which  contestant  bases  the  charge  concerning  the  inspectors'  ig- 
noring and  defying  the  authority  of  the  deputy  marshal  and  supervisor. 
We  give  it  literally,  as  follows: 


BISBEE,    JR.,    VS.    FINLEY.  237 

Q.  Did  or  not  the  inspectors  apparently  acquiesce  in' the  violent  conduct  of  the 
voters  around  the  polls  f — A.  I  heard  nothing  for  or  against  jt,  more  than  one  of  the 
supervisors  ordered  the  polls  closed  during  the  row. 

Q.  Did  the  inspectors  pay  any  regard  to  the  order  of  the  supervisor? — A.  None 
whatever  that  I  could  see. 

This  is  the  head  aud  front  of  the  ofteiiding  ou  the  part  of  the  inspect- 
ors of  the  election,  who  by  the  laws  of  the  State  are  intrusted  with  the 
management  of  the  election  themselves.  They  did  not  close  the  poll 
and  stop  the  election  at  the  command  of  a  super\isor  who  had  no  such 
authority  vested  in  him  by  act  of  Congress. 

The  next  charge  in  the  notice  of  contest  is  as  follows : 

That  the  inspectors  acquiesced  in  and  consented  to  scenes  of  lawlessness  and  dis- 
order, and  knowingly  allowed  persons  to  vote  for  you  who  were  not  qualified  voters, 
and  refused  to  receive  the  votes  of  those  who  offered  to  vote  for  me  and  W4^re  qualified 
electors,  whereby  the  result  of  the  election  was  affected. 

Where  is  the  evidence  "  that  the  inspectors  acquiesced  in  and  con- 
sented to  scenes  of  violence  ?" 
Eackley,  on  p.  1186,  testifies  as  follows  : 

Q.  Did  the  inspectors  make  any  effort  to  quell  the  disturbance  and  disorder,  and 
maintain  peace  and  quiet  about  the  polls  t — A.  None  that  I  saw  or  heard. 

Q.  Would  you  not  have  seen  it  if  they  had  done  so  ? — A.  I  should  think  I  could,  as 
1  was  within  10  or  15  feet  of  the  polls. 

Q.  Did  or  did  not  the  inspectors  apparently  acquiesce  in  the  violent  conduct  around 
the  polls? — A.  I  heard  nothing  for  or  against  it,  more  than  one  of  the  supervisors 
ordered  the  polls  closed  during  the  row. 

Again,  the  deputy  marshal,  who,  together  with  the  supervisor,  com- 
menced the  row  (according  to  his  own  testimony,  see  Eecord,  p.  1190), 
says,  on  page  1102 : 

Q.  Did  the  inspectors  make  any  efforts  to  suppress  the  violence  and  turbulence 
around  the  polls  ? — A.  Not  that  I  saw  or  heard,  and  I  was  near  the  polls  all  day. 

We  quote  froui  the  record  the  description  of  this  liUiputian  row,  in 
which  this  Ajax  deputy  marshal  was  engaged  according  to  his  own 
testimony,  on  page  1190  of  the  Eecord.  Here  is  the  description  he  gives 
of  the  great  row : 

Q.  How  long  did  the  row  continue  ?  And  describe  it. — A.  Somewhere  about  30  min- 
utes. Just  in  the  time  of  the  row,  M.  O.  Waldron  was  in  the  act  of  striking  a  ne^o 
when  I  got  to  him  ;  I  succeeded  in  stopping  him.  Just  at  that  time  A.  S.  Smith 
jerked  up  a  club  aud  started  to  B.  E.  Raulerson  to  strike  him,  and  some  one  inter- 
fered. Just  at  that  time  B.  Wesson  was  trying  to  get  his  pistol,  when  I  got  to  him. 
I  also  told  him  that  if  he  didn't  stop  fussing  there  that  I  should  have  to  arrest  him. 
Wylie  Lee  said  that  if  I  wouldn't  arrest  him  that  he  would  take  him  away  ;  and  that 
ended  the  row  there  at  the  polls.  The  cause  of  my  making  no  arrest  was  that  I  con- 
sidered it  worth  a  man's  life  to  do  it. 

Such  is  the  character  of  the  case  made  by  contestant  by  ex  parte  tes- 
timony at  Hamilton  County  poll  Xo.  3. 

The^  assault  made  upon  this  poll  is  sofrirolous  and  Jiimsy  that  we  feel 
convinced  that  to  throw  it  out  would  be  an  arbitrary  disfranchisement 
of  a  whole  voting  district  without  legal  warrant  or  excuse.  This  poll 
should  stand  as  returned. 

DUVAL,   PUTNAM,   ST.   JOHN'S,  NASSAU    COUNTY. 

Foreign-born  electors. 
Section  3,  article  14,  of  the  constitution  of  Florida,  reads  as  follows: 

At  anv  election  at  which  a  citizen  or  subject  of  any  foreign  country  shall  offer  to 
vote,  under  the)  provisions  of  this  constitution,  he  shall  present  to  the  persona  lawfuUif 
authorized  to  conduct  and  supervise  such  election  a  duly  sealed  aud  certified  copy  of  hia 
declaration  of  intention,  otherwise  he  shall  tiot  be  allowed  to  vote,  and  any  naturalized 


238  DIGEST    OF    ELECTION    CASES 

citizen  offering  to  vote  shall  prodnce  before  said  persons,  lawfully  authorized  to  con- 
duct and  8U[>ervi8e  the  election,  the  certilicate  of  naturalization,  or  a  duly  sealed  and 
certitied  copy  thereof;  otherwise  he  shall  not  be  allowed  to  vote. 

The  contestant  claims  that  "  about  seventy-five  alien-born  persons 
voted  for  contestee  without  complying  with  this  provision  of  our  con- 
stitution." 

He  contends  that  "  the  words  of  the  negative  provision  of  the  section 
of  the  constitution  quoted,  prohibiting  the  reception  of  votes  by  alien- 
born  persons,  unless  they  produce  their  naturalization  papers,  is  sub- 
stantially and  in  effect  the  same  as  the  negative  words  of  the  provisions 
requiring  registration,  which  are :  '  Ho  person  not  duly  registered  accord- 
ing to  law  shall  be  allotced  to  voteJ  " 

He  also  says : 

It  has  long  been  settled,  and  will  not  be  controverted,  that  a  vote  cast  by  a  person 
not  registered  according  to  law,  is  an  illegal  vote,  even  under  a  law  containing  no 
negative  words. 

It  cannot  be  denied  that  the  people  have  the  right  to  fix  the  qualifications  of  elect- 
ors, and  to  prescribe  the  evidence  of  such  qualifications.  In  Florida  they  have  done 
this  in  the  organic  law. 

For  the  native-born  the  evidence  of  the  qualification  and  right  to  vote  is  registration  ;  for 
the  alien-born  the  certificate  of  naturalization  or  declaration  of  intention  in  addition 
to  registration. 

Each  class  is  prohibited  by  identical  words  in  the  constitution  from  voting  without 
producing  this  evidence. 

To  hold  that  a  rote  by  an  unregistered  citizen  is  illegal,  and  that  a  rote  by  an  alien-born 
person  without  producing  the  evidence  of  naturalization,  without  which  the  law  says 
he  shall  not  be  allowed  to  vote,  is  legal,  would  be  glaringly  inconsistent,  and  illogical. 
Both  are  illegal  upon  the  same  principle.  The  contestee  does  not  contend  that  an  alien- 
born  person  who  is  not  naturalized,  or  has  not  declared  his  intention  to  become  a  cit- 
izen, is  a  legal  voter.  But  he  contends  that  if  the  inspectors  of  election  did  not  re- 
quire such  a  person  to  produce  this  evidence  of  a  qualified  voter  he  was  not  bound  to, 
and  his  vote  is  legal. 

This  extract  from  the  contestant's  argument  gives  the  issue  fairly 
which  is  involved  in  this  portion  of  the  contest.  He  rests  his  case  against 
these  alleged  foreign-born  votes  on  the  analogy  which  they  bear  to  un- 
registered votes,  and  claims  that  they  are  illegal  for  the  same  reasons 
which  justify  the  rejection  of  unregistered  votes.  Taking  the  argument 
of  the  contestant  as  a  true  statement  of  the  case,  what  is  the  law  appli- 
cable thereto  ? 

An  authority  immediately  to  the  point,  and  from  the  State  of  Florida, 
and  between  the  same  parties  as  the  present  case,  is  found  in  the  case 
of  Finley  vs.  Bisbee  in  the  Forty-filth  Congress,  wherein  the  majority  of 
the  Committee  on  Elections  held : 

If  a  person  votes  at  an  election  his  vote  is  presumed  under  the  law  to  be  legal  until 
the  contrary  be  proven  in  a  legal  way,  for  the  reasons,  first,  that  the  acts  of  an  officer 
or  officers  of  an  election  within  the  scope  of  their  authority  are  presumed  ta  be  cor- 
rect and  honest  until  the  contrary  is  made  to  appear,  and  therefore  that  they  as  such 
officers  would  not  receive  an  illegal  vote;  second,  that  the  presumption  is  always 
against  the  commission  of  a  fraudulent  or  illegal  act,  and  therefore  that  a  man  would 
not  cast  an  illegal  vote. 

This  case,  which  rules  the  one  in  hand,  was  affirmed  by  a  large  ma- 
jority as  the  law  by  which  Congress  will  be  bound  in  such  cases  in  the 
contest  of  Curtin  vs.  Yocum  in  the  Forty-sixth  Congress. 

The  report  of  Mr.  Calkins,  in  Curtin  vs.  Yocum,  holds : 

It  is  the  duty  of  the  election  officers  to  comply  with  this  law.  It  is  imperative  on 
them,  and  if  they  fail  they  subject  themselves  to  the  penalties  provided  in  sec.  12  of 
th»  registry  law.  But  to  allow  a  non-registereil  vot«r  to  vote  without  requiring  him 
to  comply  with  the  law,  if  he  is  otherwise  qualified,  is  quite  a  difterent  question.  If 
he  refuses  to  comply  on  being  requested,  then  it  is  clearly  the  duty  of  the  officers  to 
refuse  his  vote  because  he  refuses  to  obey  a  reasonable  regulation*^ prescribed  by  the 


BISBEE,    JR.,    VS.    FINLEY.  23^ 

legislature,  and  he  hurts  no  one  hut  himself.  But  if  he  is  aUotced  to  vote  mthout  being' 
required  to  file  the  affidavits  and  is  otherwise  qualified  his  vote  is  not  an  illegal  one.  The 
officers  of  the  election  have  simply  failed  to  take  and  preserve  the  evidence  which  the- 
law  requires  of  them,  but  the  failure  on  their  part  to  take  and  preserve  this  evidence 
does  not  reach  the  qualitication  of  the  voter. 

The  report  fnrtber  holds : 

That  the  clause  "  no  voter  shall  be  deprived  of  the  privilege  of  voting  by  reason  of 
his  name  not  being  registered  "  protects  all  legal  voters  in  the  right  of  suffrage,  and 
the  inference  to  our  mind  is  irresistible  under  this  decision  that  he  is  not  even/jrimo- 
facie  an  illegal  voter  because  of  non-registration      (See  McCrary,sec.  423.) 

That  case  was  also  largely  ruled  by  the  decision  of  Judge  Briggs,  in 
the  case  of  Gillin  vs.  Armstrong  (Leg.  Int.,  July  19, 1878),  which  holds t 

That  unregistered  voters  having  voted  without  making  the  affidavits,  the  law  pre- 
sumes that  they  are  legal,  and  it  cannot  be  permitted  to  show  that  they  were  not  so- 
legal. 

The  case  of  Curtin  vs.  Yocum,  which  is  not  reported  yet,  we  quote 
fully  on  this  point.  It  was  tried  on  the  sole  issue  that  an  unregistered 
vote  was  an  illegal  one.  The  present  able  chairman  of  the  Election 
Committee  (Mr.  Calkins),  who  made  the  report  of  the  minority  in  that 
case,  which  was  adopted  by  the  House,  and  thereby  became  the  law  of 
Congress  on  the  subject,  said  in  his  closing  argument : 

All  other  grounds  were  abandoned  ;  the  majority  report  is  bottomed  upon  that  sin- 
gle proposition  of  law,  that  any  person  voting  whose  name  does  not  appear  on  the- 
registry  list  is  an  illegal  TOter. 

This  case  showed  that  there  were  (1)  between  one  and  two  thousand 
persons  who  voted  at  the  election  who  were  not  registered ;  (2)  that 
there  were  three  hundred  and  eighty  persons  voted  who  were  not  regis- 
tered and  who  were  shown  by  affirmative  testimony  not  to  have  made 
the  proof  required  of  non  registered  voters  to  entitle  them  to  vote;  and 
(3)  that  there  were  ninety  persons  who  voted  for  the  contestee,  more 
than  his  majority,  who  were  not  registered  and  made  no  proof  required 
of  non-registered  voters.  The  issue  was  therefore  plainly  and  fairly 
made.    Mr.  Calkins  in  his  argument  said : 

I  call  the  attention  of  the  members  of  the  House  especially  to  the  conclusion  reached 
by  Judge  Briggs  in  construing  this  law.  He  says:  "By  accepting  the  vote,"  re- 
ferring to  the  non-registered  voter  who  presents  himself  at  the  polls  without  an  affi- 
davit, «fec.  "By  accepting  the  vote  without  demanding  the  proof  they  deprive  the- 
voter  of  the  opportunity  of  furnishing  it."  To  construe  the  law  as  contended  for  by  my 
friend  from  Pennsylvania  (Mr.  Beltzhoover)  makes  it  a  mere  trap  for  the  reason  that 
the  voter  presumes,  or  he  has  a  right  to  presume,  that  he  is  registered.  He  has  lived  in 
the  precinct  the  time  required  by  law ;  he  has  paid  his  tax ;  the  assessor  has  been  to 
his  house ;  he  knows  his  name  ought  to  be  on  the  registry  list,  and  he  goes  up  to 
the  ballot-box  with  the  ballot  in  his  hand.  They  take  his  ballot  and  deposit  it  in  the 
ballot-box,  and  afterward,  when  he  cannot  furnish  the  proof,  it  is  contended  his  vote 
is  an  illegal  one,  while  if  the  election  officers  had  called  his  attention  to  it  at  the  mo- 
ment he  could  have  supplied  the  evidence  required  and  established  his  right  to  vote 
in  the  mode  prescribed.  But  that  evidence  was  not  demanded.  He  voted  knowing 
that  he  had  a  legal  right  to  votes,  but  the  legal  evidence  of  his  ri^ht  was  not  required 
of  him  by  the  election  officers.  And  applying  the  same  doctriae  as  in  Wheelock's 
case,  "  you  cannot  deprive  the  legal  voter  of  the  right  to  vote  by  reason  of  the  failure  of 
the  officer  to  do  his  duty,"  and  it  seems  to  me  that  the  position  is  unassailable. 

The  next  position  I  assume  is  that  a  vote  having  been  deposited  in  the  ballot-box 
unchallenged  is  presumed  to  be  a  legal  vote  until  the  contrary  is  shown  ;  and  I  call 
attention  to  the  case  of  Perry  vs.  Eyan,  68  Illinois,  172.  "  Where  a  person  votes  at  an 
election  without  having  been  registered  and  without  any  proof  of  right,  if  it  doesnot^ 
appear  he  was  challenged  or  any  objection  made  to  his  vote,  the  presumption  must  be 
that  he  was  a  legal  voter  and  was  known  to  the  judges  of  election."  In  83  Illinois,  498, 
where  a  registry  law  very  similar  to  the  law  now  under  consideration  was  construed 
by  that  court,  it  was  held,  "The  presumption  of  the  legality  of  a  vote  in  no  way  de- 
pends upon  the  omission  to  challenge  or  to  object  to  it,  or  any  presumed  knowledge, 
of  the  judges  of  election,  but  it  anses  from  the  fact  of  its  having  been  deposited  la 


240  DIGEST    OF    ELECTION    CASES. 

the  bollot-box.    Wheu  once  deposited  it  will  be  presumed  to  be  a  legal  vote  until 
there  is  evidence  to  the  contrary."  .      ,  .    tt  •      t     , 

The  same  doctrine  was  held  in  the  case  of  Finley  vs.  Bisbee  in  this  House  m  the  last 
Congress.  It  is  said  by  the  chairman  of  my  committee  that  the  provisions  of  the 
law  of  Florida  and  the  law  of  Pennsylvania  are  different,  and  therefore  a  different 
rule  T)revail8.  If  they  are  materially  different,  Mr.  Speaker,  I  admit  it,  but  they  are 
not  materiallv  different,  because  in  the  Bisbee-Fiuley  case  the  committee  held  one 
provision  of  the  constitution,  which  was  mandatory  in  its  language,  to  be  directory 
merely.  The  language  was  that  certain  persons  offering  to  vote  shall  "  present  to 
the  officers  certain  naturalization  papers  at  the  time  they  ottered  to  vote.  That 
was  a  part  of  the  constitution  of  Florida,  and  yet  the  Committee  on  Elections  in  con- 
struing it  said  the  clause  was  not  mandatory,  although  it  was  a  part  of  the  oiganic 
law  of  Florida,  but  was  directory  merely.  Let  me  quote  a  sentence  from  that  report, 
which  I  believe  was  written  by  Judge  Cobb.  He  says  :  "It  is  the  settled  law  of  elec- 
tion cases  that  where  persons  vote  without  challenge  it  will  be  presumed  that  they 
were  entitled  to  vote,  and  that  the  sworn  officers  of  the  election  who  received  their 
votes  performed  their  duty  properly  and  honestly,  and  the  burden  of  proof  to  show 
the  contrary  devolves  upon  the  party  denying  their  right."  Mark,  Mr.  Speaker,  "the 
settled  law  of  all  election  cases"  is  the  language,  and  this  House  solemnly  sitting  as 
a  court  adjudged  that  to  be  the  law.  And  yet  in  this  case  the  majority  of  the  com- 
mittee say  that  every  vote  that  went  into  the  ballot-boxes  unchallenged  in  Pennsyl- 
vania, which  were  unregistered,  are  presumed  to  be  illegal.  I  admit  that  the  courts 
of  Wisconsin,  in  two  cases,  have  held  their  law  mandatory  in  construing  a  similar 
provision.  I  also  take  occasion  to  state  that  Judge  Dixon,  one  of  the  ablest  judges 
that  ever  sat  on  the  supreme  bench  of  that  or  any  other  State,  apologizes  for  having 
80  held. 

Mr.  Stevenson,  who  also  sustained  the  minority  report  in  the  Curtin 
vs.  Yocuni  case,  and  argued  it  at  length,  rested  the  case  on  "  the  pivotal 
point "  of  the  status  of  an  unregistered  voter,  who  has  been  permitted 
to  cast  his  ballot  without  making  the  proof  required  bylaw.     He  says : 

The  law  presumes  the  officers  conducting  the  election  to  have  discharged  their 
duty ;  presumes  they  have  received  the  votes  of  none  other  than  legally  qualified 
voters.     This  presumption  can  only  be  rebutted  by  evidence. 

He  then  goes  on  to  cite  very  fully  the  decision  made  by  Congress  in 
the  Finley  vs.  Bisbee  case  in  the  Forty-fifth  Congress,  and  gives  the 
strongest  extracts  from  the  report  of  the  committee.  He  also  cites 
Wheelock's  case,  1  IS^orris,  297,  and  the  case  of  Grillon  vs.  Armstrong,  and 
resting  his  case  on  these  authorities,  concludes : 

I  think  I  have  shown,  Mr,  Speaker,  by  recognized  authorities,  first,  that  the  elector 
cannot  be  deprived  of  the  right  of  suffrage  by  the  ignorance  or  misfeasance  of  the 
election  official;  second,  that  under  the  constitution  of  Pennsylvania  he  cannot  be  de- 
barred from  voting  by  reason  of  non-registration  ;  third,  that  the  officers  conducting 
the  election  are  presumed  to  have  done  their  duty,  and  received  only  legal  votes  ; 
fourth,  the  burden  of  proof  is  on  the  party  assailing  their  legality. 

TESTIMONY  WHICH   SHOULD   BE   EXCLUDED. 

The  record  shows  that  all  the  evidence  taken  in  the  counties  mentioned 
below  by  contestant  was  taken  as  rebutting  testimony,  after  the  expira- 
tion of  the  time  allowed  by  law  for  taking  original  testimony ;  that 
neither  contestant  nor  contestee  had  taken  any  testimony  in  any  of  these 
counties  during  the  forty  days  allowed  to  each,  and  that  consequently 
there  was  nothing  to  rebut ;  that  the  contestant  disregarded  the  act  of 
Congress,  which  says  that  "  the  contestant  shall  take  testimony  during 
the  first  forty  days,  the  returned  member  during  the  succeeding  forty 
days,  and  the  contestant  may  take  testimony  inrebtittal  only  during  the 
remaining  ten  days  of  said  period"  (of  ninety  days). 

The  following  are  the  counties  where  contestant  took  such  original 
testimony  in  the  ten  days  allowed  him  for  rebutting  testimony  only, 
and  where  contestee  had  taken  no  testimony ;  and  where  there  could 
not  therefore  possibly  have  been  anything  to  rebut,  viz :  Brevard,  Brad- 


BISBEE,    JR.,    VS.    FINLEY.  241 

ford,  Columbia,  Hamilton,  Putnam,  Orange,  St.  John's,  Suwanee,  and. 
Volusia  counties. 

The  record  shows  that  no  evidence-in-chief  was  taken  in  or  concerning 
the  election  in  any  of  these  counties,  and  none  whatever  by  the  con- 
t«stee  during  his  forty  days,  and  that  all  of  contestant's  testimony 
therein  was  taken  after  contestee's  time  had  elapsed,  and  after  the  con- 
testant's time  for  rebuttal  had  commenced.  See  Vallandigham  vs. 
Campbell  (1st  Bartlett,  p.  233);  Brooks  vs.  Davis  (1st  Bartlett,  244; 
McCrary  on  Elec,  sees.  347,  348) ;  Brombergt;*.  Haralson  (first  session 
Forty-fourth  Congress,  vol.  5,  Index  to  Miscellaneous  Documents  Digest 
of  Election  Cases,  p.  364.) 

It  is  claimed  that  all  this  testimony  should  be  rejected. 

Against  all  the  evidence  taken  by  the  contestant  in  the  above-men- 
tioned counties  the  unanimous  report  of  the  Committee  on  Elections  in 
case  of  Bromberg  vs.  Haralson,  first  session  Forty-fourth  Congress,  is 
cited.  It  appeared  in  that  case  that  in  Wilcox  County  the  contestant, 
Bromberg,  the  Democratic  candidate,  undertook  to  violate  the  election 
law,  just  as  the  contestant  in  this  case  has  done,  and  that  his  testimony 
so  taken  was  rejected.     (See  Bromberg  vs.  Haralson,  supra.) 

All  the  testimony  in  the  above  counties  is  ex  parte  in  behalf  of  con- 
testant. The  notices  served  by  contestant  on  contestee  for  taking  this 
testimony  in  all  those  counties  informed.contestee  that  contestant  would 
proceed  to  take  testimony  in  rebuttal.  The  contestee,  knowing  that  no 
original  testimony  had  been  taken  in  any  of  these  counties,  and  that 
there  could  be  nothing  to  rebut,  declined  to  attend  such  examinations 
of  witnesses.  The  contestant,  instead  of  taking  rebutting  testimony, 
proceeded  to  take  original  testimony. 

Tlie  contestant  also  contends  that  his  leading  attorney  was  sick,  and 
that  he  (contestant)  was  absent  in  Washington  attending  to  his  duties 
as  a  member  of  Congress,  and  that  this  is  a  suflBcieut  excuse  for  not 
taking  testimony  in  the  time  and  manner  allowed  by  law. 

The  record  shows  that  the  answer  of  the  returned  member  was  served 
on  the  3d  of  February,  1881,  and  upon  that  day  contestant's  forty  days 
for  taking  testimony  commenced.  The  contestant  contends  that  on 
account  of  the  trouble  which  occurred  in  Madison  County  on  the  8th  of 
February,  his  leading  attorney,  H.  Jenkins,  became  sick.  The  follow- 
ing extract  from  the  certificate  of  the  officer  before  whom  his  evidence 
was  taken,  p.  885  of  the  Eecord,  shows  that  on  the  18th  of  February 
his  attorney,  Jenkins,  was  attending  to  his  case.  (See  Record,  885,  as 
follows: ) 

Contested  election,  Forty-serenth  Congress  of  the  United  States. 
Horatio  Bisbee,  Jr. 

V8. 

Jesse  J.  Fini^ey. 

In  pursuance  of  notice  of  contestant,  in  the  above-entitled  cause,  to  contestee,  of 
taking  testimouj',  a  copy  of  which  notice  is  hereunto  attaclied,  filed  by  contestant, 
I  have  this  day  begun  the  examination  of  witnesses  on  behalf  of  contestant,  H.  Bis- 
bee, jr.,  at  my  office  in  Jacksonville,  Duvall  County,  Florida,  this  18th  day  of  Feb- 
ruary, isSl ;  H.  Jenkins,  jr.,  attorney  foT  contestant,  and  S.  J.  Finley,  attorney  for 
contestee,  being  present. 

J.  C.  MARCY,  Jr., 

Notary  Fublic, 

On  page  67  of  the  Record  the  following  certificate  of  Watson  Porter, 
the  officer  who  took  contestant's  testimony  in  Alachua  County,  shows 
that  contestant  appeared  there  by  another  attorney,  and  that  he  did  not 
commence  taking  his  testimony  there  until  the  7th  of  March. 
H.  Mis.  35 16 


1 


242  DIGEST  OF  ELECTION  CASES. 

ALACHUA  COUNTY. 

Parauant  to  notice  of  contestant  in  this  case,  I,  Watson  Porter,  notary  public  for 
the  Stat«  of  Florida  at  large,  sat  in  my  office  in  the  town  of  Gainesville,  Fla.,  Alachua 
County,  on  Monday,  the  7th  day  of  March,  A.  D.  1881,  at  9  o'clock  a.  m.,  for  the  pur- 
pose of  examining  witnesses  and  taking  evidence  on  behalf  of  the  contestant;  W.  T. 
Pierson  and  F.  E.  Hughes  appearing  as  counsel  for  the  contestant,  and  no  one  appear- 
ing for  the  contestee. 

Counsel  for  contestant  offers  to  be  filed  a  copy  of  the  notice  of  taking  testimony,  with 
a  list  of  witnesses  for  district  No.  12,  which  is  filed  and  marked  Exhibit  A. 

Counsel  for  contestant  also  offers  to  be  filed  a  copy  of  notice  of  contest  in  this  case, 
■which  is  filed  and  marked  Exhibit  B. 

Contestant's  counsel  also  offers  a  copy  of  the  answer  of  contestee,  which  is  filed  and 
marked  Exhibit  C. 

Counsel  for  contestant  files  in  evidence  a  certified  copy  of  the  poll-list  for  Arredonda 
district  No.  12,  Alachua  County,  filed  and  marked  Exhibit  D. 

At  9.30  a.  m.  T.  F.  King  appeared  as  counsel  for  contestee. 

The  Record  shows  that  contestant's  forty  days  were  not  diligently  oc- 
cupied, but  frittered  away;  so  that  there  is  no  excuse  for  asking  any 
further  indulgence  to  contestant.  The  contestant  says  in  his  brief  (p.  2) 
that  most  of  the  frauds  were  charged  to  have  been  committed  at  less 
than  a  dozen  polls. 

Sec.  109,  Eev.  Stat.,  pro\ides — 

That  testimony  in  contested  election  cases  may  be  taken  at  two  or  more  places  at 
the  same  time. 

And  in  section  110,  Rev.  Stat.,  so  numerous  a  class  of  officers  are  au- 
thorized to  take  testimony  that  in  every  county  there  is  no  difficulty  in 
finding  officers  qualified  to  take  such  testim  ony. 

Mr.  McCrary,  sec.  348,  says : 

The  statute  as  it  now  stands  (see  sec.  108,  Rev.  Stat.  U.  S.)  affords  an  opportunity 
for  investigation,  so  ample  and  complete  that  it  is  believed  that  it  will  seldom  happen 
that  the  House  will  find  it  necessary  to  depart  from  its  provision  in  order  to  do  the 
most  complete  and  perfect  justice,  and  it  will  no  doubt  be  adhered  to  as  furnishing  the 
best  possible  guide  for  instituting  and  carrying  forward  inquiries  of  this  character. 

We  have  considered  almost  all  the  testimony  thus  irregularly  and 
illegally  taken,  but  we  earnestly  protest  against  the  admission  of  such 
evidence  unless  great  injustice  would  be  done  by  rejecting  it.  We  prefer 
to  adhere  to  the  law.  The  above-mentioned  counties  should  stand  as 
returned,  however,  both  from  the  fact  that  all  the  testimony  taken 
by  contestant  to  assail  them  is  unwarranted,  and  because  the  testimony 
itself,  as  shown  by  the  record,  is  insufficient  to  warrant  the  committee 
in  rejecting  the  official  returns  and  thereby  disfranchising  hundreds  of 
legal  voters. 

CONCLUSION. 

We  believe  from  the  evidence,  and  under  the  law  applicable  to  the 
case,  that  Alachua,  Madison,  and  Marion  Counties  should  stand  as  re- 
turned. 

The  returns  from  the  whole  district  give — 

Finley,  13,105  votes ;  Bisbee,  11,953  votes ;  Tiuley's  majority,  1,152. 

If  the  six  polls,  where  fraud  is  charged  in  Madison  County,  should  be 
rejected,  311  votes  (Bisbee's  majority  in  them)  should  be  added  to  Fin- 
ley's  returned  majority  of  the  whole  district;  thus,  1,152  -f  311,  which 
would  give  Finley's  majority  for  the  whole  district  1,463  votes. 

But  if  we  give  the  contestant  the  benefit  of  the  most  extreme  liber- 
ality, and' allow  him  all  votes  to  which  he  could  in  any  way  be  entitled,, 
the  summary  would  be  as  follows,  viz : 


COOK  VS.   CUTTS.  243 

Finley's  official  vote „ 13^  43O 

Bisbee's  official  vote 12,427 

Add  from  Alachua 88 

Add  from  Marion 122 

Add  from  Nashua 2 

Add  from  Madisou 328 

Add  from  Orauge 33 

13,000 

Finley's  majority 430 

From  this  may  be  deducted,  all  other  votes  which  there  is  any  proof  to  show 
were  disallowed - 114 

Leaving  Finley's  majority 316 

Thus  the  most  favorable  showing  which  could  in  any  way  be  obtained 
would  leave  the  contestant  still  over  300  votes  short  of  an  election. 

We  therefore  recommend  the  adoption  of  the  following  resolutions : 

1st.  Resolved,  That  Horatio  Bisbee,  jr.,  was  not  elected  as  a  Eepresent- 
ative  to  the  Forty-seventh  Congress  of  the  United  States  from  the  sec- 
ond Congressional  district  of  Florida,  and  is  not  entitled  to  occupy  a 
seat  in  this  House  as  such. 

2d.  Resolved,  That  Jesse  J.  Finley  was  duly  elected  as  a  Eepresenta- 
tive  from  the  second  Congressional  district  of  Florida  to  the  Forty- 
seventh  Congress  of  the  United  States,  and  is  entitled  to  retain  his  seat 
as  such. 

F.  E.  BELTZHOOVER. 
L.  H.  DAYIS. 

S.  W.  MOULTOK. 

G.  ATHERTON. 

I  concur  in  the  conclusion  that  Finley's  actual  majority,  as  stated  in 
the  summary,  is  316. 

G.  W.  JONES. 


JOHN  C.  COOK  vs.  MARSENA  E.   CUTTS. 

Sixth  Congressional  District  of  Iowa. 

Contestant  charges  that  persons  voted  for  contestee  who  had  not  been  in  the  State 
six  [months  f  ]  and  that  five  votes  were  erroneously  counted  for  contestee  in  foot- 
ing up  a  tally-sheet. 

Held,  That  as  the  constitution  of  Iowa  required  six  months'  residence  in  the  State  be- 
fore a  person  can  vote,  and  a  number  of  persons  voted  for  contestee  who  had  not 
resided  in  the  State  that  length  of  time,  such  votes  must  be  deducted  from  the 
certified  vote  of  contestee. 

That  the  error  of  five  votes  in  footing  the  tally-sheet  is  so  apparent  that  the  same 
must  be  corrected,  and  that  number  of  votes  also  be  deducted  from  contestee. 

Witnesses  called  to  testify  refused  to  disclose  for  whom  they  voted.  Held,  That  this 
may  be  shown  by  circumstances :  Who  they  were  employed  by ;  who  brought 
them  to  the  polls ;  who  challenged  them ;  who  urged  and  directed  them,  and  gave 
them  their  tickets. 

The  House  adopted  the  majority  report.  \ 


244  DIGEST  OF  ELECTION  CASES. 

February  19, 1883.— Mr.  Beltzhoover,  from  the  Oommittee  on  Elec- 
tions, submitted  the  following 

BEPOBT: 

The  Committee  on  Elections,  to  whom  was  referred  the  contested-election 
case  of  J.  C.  Cook  vs.  M.  E.  Cutts^from  the  sixth  Congressional  district 
of  the  State  of  loica,  submit  the  following  report  : 

I. 

The  vote,  as  found  by  the  State  canvassing  board  certified  to  them, 
was  as  follows : 

For  contestee,  18,619,  and  contestant,  17,918. 

But  the  county  canvassers  of  Monroe  County  wrongfully  excluded 
and  failed  to  certify  the  vote  of  two  townships  (Cedar  and  Franklin), 
in  which  contestant  had  213and  incumbent  121  (Rec.,  130  to  174,  inc.). 
Adding  this,  we  have  the  vote  as  actually  cast — for  contestee,  18,140; 
for  contestant,  18,131.  The  majority  of  the  sitting  member  is  therefore 
conceded  to  be  only  9. 

II. 

Contestant  charges  that  at  the  Albia  coal  mine,  in  Monroe  County, 
colored  men  had  been  imported  from  Missouri  and  Kansas  to  work  in 
the  mines,  and  that  of  these  miners  a  large  number  who  had  not  been 
in  the  State  six  months  voted  for  contestee. 

The  constitution  of  Iowa  requires  full  naturalization,  residence  in  the 
State  six  months,  and  excludes  idiots  and  lunatics. 

While  the  proof  tends  strongly  to  show  that  about  100  of  these  colored 
men  voted  for  Mr.  Cutts,  which  was  considerably  in  excess  of  the  num- 
ber entitled  to  vote,  yet  it  lacks  that  defiuiteness  and  clearness  in  iden- 
tifying and  pointing  out  the  voters  and  showing  the  vote  illegal  neces- 
sary to  warrant  us  in  excluding  more  than  two  votes,  those  of  Lucius 
Bell  and  John  Walker,  especially  the  latter. 

It  is  shown  that  they  voted,  and  voted  the  ticket  on  which  was  con- 
testee's  name(Eec.,  128  and  129),  and  were  not  legal  voters.  Also,  the 
pay-roll  of  the  company  shows  that  neither  were  at  the  mine  as  early  as 
May,  1880. 

The  contestee  offered  evidence  to  explain  or  account  for  the  absence 
of  other  names  from  this  roll,  but  made  no  attempt  to  explain  as  to 
these ;  and  as  to  Walker,  in  addition  to  this,  it  is  shown  that  he  had  no 
intention  of  making  Iowa  his  home,  but  always  intended  to  return  to 
his  family  in  Leavenworth,  Kans. 

III. 

The  contestant  rests  his  case  mainly  on  the  charge  that  in  Des  Moines 
and  Harrison  Townships,  in  Mahaska  County,  twenty- three  illegal  votes 
were  polled  for  contestee  by  colored  men  working  in  Muchikinock  coal 
mines. 

It  is  abundantly  proved,  and  in  fact  not  denied,  that  the  coal  company 
imported,  in  "lots  or  crowds,"  colored  men  as  miners  from  Virginia ;  and 
that  these  were  brought  by  Maj.  Thomas  Shumate,  who  was  employed 
for  that  purpose  ^Rec,  319,  321).  The  first  crowd  came  to  Iowa  March 
5, 1880.    (Rec.,  6o0,  interrogatory  10,  and  583,  interrogatory  2.) 


COOK   VS.   CUTTS.  245 

The  second  party  came  April  4,  1880.  (Eec,  560  and  561,  interroga- 
tories 2  and  16  ;  583,  interrogatory  2 ;  585,  interrogatories  2,  3,  and  4 ; 
and  626,  interrogatory  3.) 

The  fourth  came  July  2,  1880.  (Rec,  550,  interrogatories  5  and  6 ; 
559,  interrogatory  122 ;  585,  interrogatories  8  and  9 ;  586,  interroga- 
tories 23,  24,  and  25  ;  592,  interrogatory  38  ;  and  395,  top  of  page.) 

The  fifth  came  in  September  and  the  sixth  in  October,  1880. 

On  this  there  is  no  dispute.  It  is  sustained  by  the  testimony  of  wit- 
nesses on  both  sides. 

The  time  of  the  arrival  of  the  "  third  or  May  party  "  only  is  in  dis- 
pute. 

The  contestant  claims  they  came  May  15,  and  the  contestee  claims 
they  came  May  1. 

If  they  came  after  May  1  they  were  too  late  to  vote. 

Briefly  stated,  tlie  testimony  on  this  point  is  as  follows :  The  witness 
Shumate,  who  brought  the  April  and  all  subsequent  crowds  from  Vir- 
ginia, says  they  came  there  on  the  15th  of  May.  He  exhibits  letters 
written  by  himself  to  his  wife,  who  was  then  in  Virginia,  and  with  whom 
he  corresponded  while  in  Iowa. 

These  letters  were  written  at  Muchikinock,  April  13,  17,  and  26, 
and  from  these  he  is  positive  that  he  did  not  leave  Iowa  for  that  crowd 
until  after  the  26th.  It  would  take  him  at  least  three  days  to  make  the 
trip  each  way,  and  several  days  in  Virginia  to  gather  up  the  crowd  and 
prepare  for  emigration,  thus  making  it  impossible  to  have  arrived  in 
Iowa  as  early  as  the  1st. 

He  also  exhibits  and  puts  in  evidence  a  similar  letter  written  and 
dated  at  Muchikinock  on  May  16,  1880,  in  which  he  says  he  arrived 
the  day  before,  and  narrates  the  incidents  of  the  trip  to  Iowa.  An  in- 
spection of  this  letter  shows  many  evidences  of  its  genuineness.  He  is 
supported  in  this  by  the  testimony  of  five  other  witnesses  (Rec,  96,  97, 
366,  391,  392,  393,  397,  507, 508,  and  511) ;  each  of  these  five  witnesses 
has  some  circumstance  by  which  to  fix  the  date. 

The  contestee  introduces  eight  witnesses,  who  swear  that  the  crowd 
came  May  1 ;  some  of  these  were  of  the  May  party  and  some  were  not. 
But  none  of  them  have  any  circumstance  or  fact  by  which  to  aid  the 
memory  in  fixing  the  dat^,  and  as  they  testified  two  years  thereafter 
they  may  well  have  been  mistaken  as  to  the  date. 

But  whatever  doubt  remains  on  this  point  is  dispelled  by  the  rebut- 
ting evidence  taken  by  contestant. 

In  the  cross-examination  of  the  contestee's  witnesses,  and  also  by  other 
evidence,  it  is  shown  that  this  crowd  came  from  Chicago  over  the  C. 
and  N.  W.  railway  to  Marshalltown,  Iowa,  in  a  car  which  was  dropped 
by  the  train  at  that  place  some  time  in  the  night,  and  they  remained 
in  it  until  morning,  when  they  were  put  into  an  old  black  passenger 
coach  on  the  Central  Iowa  Railway,  which  was  attached  to  a  freight 
train  and  run  down  to  Muchikinock.  (Rec,  562,  interrogatory  57 ;  592, 
interrogatories  41  and  42;  610,  top  of  page;  632,  interrogatories  24  to  34; 
648,  interrogatory  46;  653,  interrogatories  17  to  37;  and  505,  interroga- 
tories 10  to  21.) 

It  is,  then,  by  contestant  in  rebutting,  conclusively  shown  by  the 
records  in  the  general  offices  of  these  two  roads,  and  several  of  their 
officers  and  employes,  that  this  did  not  occur  on  Ma^'  1  nor  thereabouts, 
but  did  occur  on  May  15. 

Further  than  this,  these  people  were  gathered  up  by  Shumate  at 
Staunton,  Va.,  and  their  leaving  was  a  matter  of  such  public  notoriety 
that  it  was  published  and  commented  upon  at  the  time  by  the  Staunton 


246  DIGEST  OF  ELECTION  CASES. 

newspapers.  The  original  publications  being  exhibited  before  the  com- 
mittee, show  that  this  crowd  left  Staunton  for  Iowa  on  May  12,  and 
there  can  be  no  room  for  doubt  that  they  came  to  Iowa  on  the  15th. 

It  cannot  be  claimed  that  two  parties  came  in  May,  for  it  is  not  at- 
tempted to  be  shown  in  the  testimony.  The  records  of  the  coal  com- 
pany show  only  one  May  party;  and  contestee,  by  his  own  evidence, 
showed  the  July  party  to  hare  been  the  fourth  party,  whereas  if  two 
parties  had  come  in  May  the  July  crowd  would  necessarily  have  been 
the  fifth.  (Rec,  550,  interrogatories  5  and  6;  559,  interrogatory  122; 
585,  inten-ogatories  8,  9,  and  10;  586,  interrogatories  23,  24,  and  25.) 

The  contestant,  in  his  brief,  asserted  that  it  was  conceded  that  only 
one  crowd  came  in  May;  and  contestee,  in  Iiis  printed  brief,  conceded 
this,  and  said  that  it  was  doubtful  whether  they  arrived  May  1st  or  15th. 
(See  contestee's  brief,  page  45.) 

Major  Shumate  testifies  positively  that  seven  men,  to  wit,  Jesse  K 
Carroll,  Charles  Garrison,  George  W.  Lewis,  Henry  Lewis,  Sam  Mop- 
pin,  James  S.  Martin,  and  Linza  Eobinson,came  in  the  "third  of  May 
crowd."  This  is  not  only  not  disputed,  but  contestee's  witnesses  testi- 
fied to  substantially  the  same  thing.  (Rec,  589^559,  G09,  interrogatories 
9, 14,  and  15;  631  and  032,  interrogatories  3  an(r*26 ;  and  page  653.)  And 
contestee,  in  his  printed  brief,  admits  that  the  third  of  May  party  em- 
braced these  seven  names.    (See  brief,  page  45.) 

IV. 

The  votes  of  the  following  of  said  colored  miners  are  also  claimed  to 
be  illegal  on  the  same  ground,  to  wit:  James  Usher,  James  Byers,  John 
Clark,  William  Harland,  William  H.  Hues,  Spencer  James,  John  W. 
Jackson,  Andrew  Lewis,  Earnest  Linsey,  G.  W.  Randall,  Hardin  White, 
Sam  Winbush,  Randolph  Willis,  Joseph  James,  John  Burks,  and  D.  F. 
or  Frank  Woodward,  and  it  is  claimed  that  they  came,  some  in  the  July, 
some  in  the  September,  and  some  in  the  October  crowd.  And  on  this 
point  there  is  no  conflict  in  the  evidence. 

It  is  shown  that  the  company  made  out  monthly  pay-rolls,  which  was 
the  basis  of  its  monthly  payments  to  and  settlements  with  its  men.  In 
addition  to  this  it  is  shown  that  the  company  advanced  their  railroad 
fare  from  Virginia  to  Iowa,  and  as  a  crowd  was  brought  their  names 
were  entered  on  a  roster  or  book  kept  for  that  purpose,  and  the  amount 
advanced  to  each  was  placed  under  his  name  as  an  item  of  charge;  then 
as  he  was  charged  upon  the  pay-roll  of  that  month,  on  such  account, 
the  same  was  credited  to  him  on  this  roster.  This  book  fails  to  show 
the  day  of  the  mouth  when  any  man  came,  but  by  observing  the  order 
in  which  they  appear,  and  the  month  of  the  pay-roll  referred  to  there, 
one  can  readily  see  the  month  when  each  man  came. 

Many  of  the  men  also,  while  giving  testimony,  stated  the  time  of  their 
arrival,  which  invariably  corresponds  with  the  time  thus  shown  on  the 
roster.  In  addition  to  this,  the  contestee  in  his  testimony  showed  who 
came  in  the  May  crowd,  all  of  whom  appear  upon  the  roster  as  coming 
in  May.  George  W.  Lewis  testifies  for  the  contestee  to  this  effect  (Rec, 
631),  and  his  name  is  on  the  roster  as  the  last  of  the  May  crowd.  The 
name  immediately  following  his,  as  the  first  of  the  July  crowd,  is  Adam 
Fielding,  who  also  testifies  for  incumbent  that  he  came  in  the  July 
crowd ;  and  all  these  names  last  specified  as  illegal  voters  api)ear  upon 
the  roster  after  him.  It  is  certainly  apparent  from  this  that  these  men 
came  in  July  or  later. 

This  book  was  kept  by  the  company  (a  cori)oration)  for  the  purpose 


COOK   VS.   CUTTS.  247 

of  keeping  track  of  these  meu  and  keeping  their  accounts,  and  in  the 
absence  of  any  effort  bj^  the  contestee  to  contradict,  where  the  means  to 
contradict  it,  if  incorrect,  was  at  hand,  must  be  conclusive.  Kone  of 
these  names  appear  on  the  pay-rolls  until  after  May  ;  and  while  a  name 
migiit  have  been  omitted  from  the  pay-roll  by  accident  or  a  mistake 
.made  in  the  name,  yet  when  the  name  also  appears  upon  the  roster  for 
the  first  time  after  the  May  crowd,  and  is  there  put  down  as  coming  in 
July  or  later,  there  is  left  no  room  for  reasonable  doubt  that  such  man 
eame  too  late  to  vote.  And,  further,  the  witness  Shumate  is  interro- 
gated specifically  as  to  all  but  two  of  these  (Burks  and  Woodward),  and 
says  they  came  later  than  May,  and  the  fact  is  noteworthy  that,  although 
testifying  without  any  aid  from  the  roster  (which  was  then  in  possession 
of  the  contestee),  the  time  he  fixed  as  the  month  of  the  arrival  of  these 
men  is  uniformly  the  same  as  that  indicated  by  the  roster  when  it 
was  finally  produced. 

It  seems  that  the  company  did  quite  an  extensive  business,  paying 
on  its  rolls  for  labor  during  the  month  of  May  over  $5,000,  and  that 
these  rolls  are  the  basis  of  each  monthly  settlement  with  its  men,  and 
the  roster  was  kept  for  the  purpose  of  keeping  track  of  the  colored 
l^eople  brought  there,  and  keeping  their  accounts.  They  also  appear 
to  have  been  kept  with  a  fair  degree  of  accuracy,  and  therefore  they 
furnish  a  very  reliable  character  of  evidence,  especially  as  the  contestee 
had  at  hand  witnesses  to  dispute  their  accuracy  if  not  correct  in  a  par- 
ticular instance. 

As  to  the  two  men  Burks  and  Woodward,  concerning  whom  Shumate 
was  not  interrogated,  their  names  occur  on  the  roster  among  those  who 
clearly  appear  to  have  come  in  July. 

As  to  Shumate,  it  may  be  said  he  is  sustained  by  the  records  and 
books  of  the  coal  company  on  every  material  point. 

He  testifies  intelligently,  with  apparently  no  motive  to  falsify,  and  it 
is  noteworthy  that  on  all  the  points  on  which  he  was  disputed  he  is 
clearly  shown  to  have  been  correct  by  evidence  afterwards  discovered* 

That  the  character  of  this  roster  or  book  of  accounts  may  be  under- 
stood we  quote  from  the  evidence. 

In  the  testimony  originally  taken  (March,  1881),  McNeal,  one  of  the 
proprietors  of  the  mine,  said,  "  We  have  a  record  containing  the  name 
and  time  of  commencing  work  of  all  the  men  brought  from  Virginia," 
&c.,  but  declined  to  produce  it  (Rec,  119) ;  and  afterwards  (March, 
1882),  he  was  again  called,  and,  after  testifying  that  all  the  colored  men 
were  brought  by  Major  Shumate,  he  says : 

Questiou.  When  these  colored  men  were  brought  were  their  names  entered  upon  a 
register  or  roster,  and  their  advances  for  railroad  fare  charged  to  them  upon  the  same 
at  the  time  ? 

Answer.  Tlieir  names  were  entered  upon  the  roster,  and  the  amount  of  each  charged. 
This  may  have  been  done  immediately  on  arrival,  or  afterwards.  This  was  done  in 
my  office  by  William  Phillips,  who,  is  now  iu  Austin,  Texas. 

Question.  You,  I  suppose,  frequently  saw  this  register  or  roster? 

Answer.  Yes,  sir. 

Question.  State  whether  or  not  it  contained  the  names  of  the  men  coming  in  the 
various  lots  as  they  arrived. 

Answer.  It  was  kept  for  that  purpose,  and  should  have  contained  them,  and  the 
supposition  is  that  it  does  (Rec,  319,  bottom). 

jNIajor  Shumate,  after  testifying  that  he  brought  all  the  colored  men 
from  Virginia,  says : 

Question.  What  was  done  by  the  company  or  its  clerks  and  yourself  with  reference 
to  makiug  a  record  or  account  of  those  men  when  they  came  ?    Please  state  fully. 

Answer.  We  kept  a  register  or  roster  of  them.  The  rule  was  that  all  their  accounts 
were  charged  up  in  that,  iucludiug  transportation,  except  store  account. 


248  DIGEST    OF    ELECTION    CASES. 

Question.  How  soon  was  this  record  made,  and  what  did  you  call  it  ? 

Answer.  It  was  but  a  few  days  after  our  arrival.  I  took  a  memorandum  of  their 
names  on  the  trip  out  and  furnished  it  in  sheet  form  to  Mr.  McNeal— made  up  the 
roster,  as  we  called  it.     (Rec,  321,  bottom ;  322,  top ;  and  again  Eec,  325,  top.) 

Interrogatory.  Did  you  vote  at  the  fall  election  of  1880  ? 

Answer.  No,  sir  ;  I  don't  know  who  voted  ;  I  took  no  lot  nor  part  in  it.  I  never 
saw  any  poll-book  or  anything  connected  with  it.  I  would  like  to  explain  before 
cross-examination.  Whenever  I  went  for  a  party  of  men  and  returned,  I  rendered  an 
account  at  the  oflSce  of  my  expenses  and  charges  to  the  men,  from  a  memorandum 
book,  and  handed  in  sheet  form  to  the  clerk,  but  made  no  entries  my  self  on  books  of 
the  company ;  frequently  the  roster  was  made  in  my  presence.  William  Phillips 
usually  asked  me  to  stay  and  see  the  entries  on  the  books,  as  he  could  not  read  my 
writing  very  well  and  could  not  make  out  the  names. 

Cross-examination : 

Interrogatory.  Did  you  see  entries  made  in  the  roster  ? 

Answer.  I  saw  them  after  they  were  made.  Mr.  Phillips  usually  would  call  oii 
me  to  read  the  names  from  my  sheets,  and  he  would  take  them  down  while  writing 
at  his  desk.  I  had  frequent  occasion  to  examine  them  after  they  were  made.  I  can't 
say  that  I  did.     (Rec,  325,  top.) 

Bringing  these  men  to  the  mines  and  the  employment  of  colored 
miners  was  a  new  thing ;  the  company  advanced  their  railroad  fare,  and 
it  would  be  necessary  for  it  to  keep  some  account  of  the  matters,  and 
this  book  would  be  what  might  be  expected. 

The  first  men  upon  it  are  the  March  party ;  they  are  each  charged 
the  railroad  fare,  $12,  and  are  credited  for  work  done  in  March. 

It  will  be  observed  that  the  same  amount  credited  to  each  man  on  tlie 
roster  is  charged  to  him  on  the  March  pay-roll,  and  the  same  names 
on  the  roster  as  the  March  party  are  on  the  March  pay-roll.  (Rec.,-  412, 
&c.) 

Then  comes  those  who  came  in  April ;  here  again  railroad  fare  is. 
charged,  and  each  man  credited  by  work  done  in  April. 

Then  comes  the  May  party,  as  follows,  beginning  on  page  67,  and  end- 
ing on  page  78  of  the  roster : 

Annie  Carter,  Sam.  Maupin,  Grace  Maupin,  Mary  Carter,  Julia  Bess,. 
lAnzea  Rohinson,  Mary  Robinson,  James  Martin,  Henry  Lewis,  Minnie 
Garrison,  Charles  Garrison,  Mary  Ella  Garrison,  Mary  A.  Carter,  Willie 
Garrison,  Wm.  Howard,  Andy  Turner,  Mary  Bates,  Mary  E.  Irwine^ 
Jesse  Carroll,  James  Gary,  Sarah  Garrison,  Sarah  Poindexter,  George 
Lewis. 

Those  preceding  them  were  credited  "  by  April  rolls,"  being  for  work 
done  in  April ;  all  these  are  credited  "  by  May  rolls,"  showing thatthey 
did  no  work  before  May. 

These  various  parties  appear  upon  the  roster,  each  separate  and  dis- 
tinct from  the  others,  and  in  the  order  in  which  they  came,  with  the 
single  exception  that  five  men  are  entered  and  their  accounts  begun  at 
the  close  of  the  April  or  second  crowds,  but  the  entries  themselves  show 
that  they  were  of  the  March  party,  so  that  even  this  shows  correctly 
the  month  they  came.  It  is  accounted  for  by  the  facts  that  McNeil,  pro 
prietor,  himself  came  to  Virginia  for  the  first  lot,  and  himself  paid  the 
expenses  of  this  party  out;  and  as  this  was  a  new  project,  the  plan  of 
keeping  their  accounts  was  probably  not  adopted  nor  systematized  im- 
mediately on  their  arrival.  So  that  we  have  the  positive  proof  in  the 
books  and  accounts  of  the  coal  company  that  these  seventeen  men  came 
in  July,  September,  and  October,  1880,  and  the  distinct  evidence  of  the 
man  who  personally  gathered  them  up  and  took  them  out,  who  gives 
the  time  of  arrival  of  each  to  the  same  effect.  Against  this  there  is  not 
even  an  attempt  to  offer  evidence.  In  short,  it  stands  undisputed  by 
a  word  of  evidence  or  the  slighest  circumstance. 

These  sixteen  added  to  the  seven  who  came  in  the  May  crowd  makes 


^0..     31 

"   ..     46 

"  .-     47 

"  .-     4B 

"  ..  184 

•♦  ..   18& 

COOK   VS.    CUTTS.  249 

twenty-three  who  are  clearly  proven  to  have  come  too  late  to  vote. 
And  we  might  add  that  these  colored  people  were  taken  to  the  polls 
and  voted  by  white  men  who  were  laboring  to  secure  for  their  party  as 
large  a  vote  as  possible,  and  it  would  be  strange  had  not  illegal  votes 
been  cast  by  some  of  them.  ^ 

V. 

These  men  are  all  shown  to  have  voted  in  East  Des  Moines  and  Har- 
rison Townships. 

First  is  given  a  certified  copy  of  the  poll-list  in  each  township  (Eec, 
99  and  103) ;  second,  the  original  poll-list  is  proved  by  the  clerks  and 
put  in  evidence  (Eec,  344  and  346) ;  and,  third,  the  clerks  of  the  election 
marked  the  name  of  each  colored  miner  on  the  poll-book  as  he  voted, 
and  they  appeared  and  testified  that  these  men  voted. 

In  East  Des  Moines  Township — 

Jease  H,  Carroll is  No 

Earuest  J.  Liusey  (see  Eec. ,  99,  for  correct  name) " 

James  S.  Martin  (see  Rec,  99,  for  correct  name) " 

George  W.  Lewis  (see  Eec,  99,  for  correct  name) " 

Henry  Lewis  (see  Eec,  99,  for  correct  name) " 

Charles  Garrison  (see  Eec,  99,  for  correct  name) " 

(Eec,  98  and  100,  &c.) 

In  Harrison  Township — 

Nelson  Woodford is  No..  214 

SamWinbnsh "    "  ..  216 

Eandolph  Willis "    "  ..  232 

Linda  Eobinson "    "   ..235 

William  Garland 24? 

John  Burks 255 

Sam  Moppin 25g 

John  Clark 32o 

Jos.  James 322 

James  Byers 323 

Wm.  H.  Hues 325 

Spencer  James 328 

John  W.  Jackson 32^ 

James  Usher SSg 

Andrew  Lewis  .   334 

D.  F.  Woodard 335 

G.  W.  Eaudall 336 

Jos.  James  is  on  the  poll  list  as  Josiah  James.  Two  witnesses  swear 
his  name  is  Josep||  or  Joseph  H.  James,  and  that  there  was  only  this 
one  James  at  the  mines  or  among  the  colored  people.  And  it  appears 
that  he  was  at  the  i^olls  at  the  time  this  crowd  voted.  (Rec,  368  and 
395.) 

Shumate  says  James  came  in  September  (Rec,  395). 

James  Byers  is  on  the  list  as  James  Byes ;  but  Foster,  a  colored  man, 
swears  he  gave  James  Byers  his  ticket  and  he  saw  him  vote,  and  his 
name  is  just  before  that  of  Foster  on  the  poll-list.     (Rec,  382,  bottom.) 

VI. 

To  prove  for  .whom  these  votes  were  cast  contestant  issued  subpoenas 
for  all  these  men.  The  returns  on  the  subpoenas  show  that  only  a  very 
few  (three)  could  be  found.  (Rec,  306,  &c.)  All  those  who  appeared 
either  under  summons  from  contestant  or  as  witnesses  for  contestee  de- 
clined to  disclose  for  whom  they  voted  when  asked  by  contestant;  and 
all  those  who  came  in  the  May  crowd  refused  to  say  whether  they  voted 


250  DIGEST    OF    ELECTION    CASES. 

or  not.    (Rec,  Geo.  W.  Lewis,  334;  Jesse  K  Carroll,  335 ;  James  Martin, 
«12;  Geo.  W.  Lewis,  633;  Hugh  Lee,  C43.) 

It  is  shown  generally  that  the  men  who  employed  these  miners  were 
favorable  to  Mr.  Cutts ;  that  they  were  brought  to  the  polls  by  Repub- 
licans; that  their  votes  were  challenged  by  Democrats  and  Green back- 
•ers  (contestant's  friends),  and  their  votes  urged  and  directed  by  Repub- 
licans. Republicans  and  men  distributing  Republicau  tickets  gave 
them  their  ballots,  &c.     (Rec,  112,  and  from  326  to  391,  inclusive.) 

When  the  voter  cannot,  by  reasonable  diligence,  be  found,  or,  being  found,  refuses 
to  state  for  whom  he  voted,  it  may  be  shown  by  circumstances.  And  here  great  lati- 
tude must  be  allowed.     (McCrary  on  Elections,  p.  306.) 

By  the  above  circumstances  the  contestant  has  shown  all  that  can 
be  shown  in  any  case,  that  these  colored  miners  all  voted  the  Repub- 
lican ticket,  on  which  was  contestee's  name. 

In  addition  to  this  it  is  shown  by  a  colored  man  who  went  with  the 
last  crowd  that  voted  at  Harrison  Township  poll  that  he  and  another 
man  supplied  the  whole  lot  with  tickets  that  were  voted,  and  that  they 
were  Republican  tickets;  and  this  is  nowhere  denied.  (Rec,  367.) 
This  crowd  voted  just  before  the  polls  closed,  as  shown  by  the  poll  list 
(Rec,  349),  beginning  with  No.  320  and  ending  with  IS'o.  388.  This  in- 
cludes James  Usher,  James  Byers,  John  Clark,  Wm.  H.  Hues,  Spencer 
James,  John  W.  Jackson,  Andrew  Lewis,  G.  W.  Randall,  Hardin 
White,  Joseph  James,  and  D.  F.  Woodard,  eleven  in  number. 

In  addition  to  this  it  is  shown  that  these  illegal  voters  all  were  Re- 
publicans, and  in  the  celebrated  "  New  Jersey  cases  "  it  was  held  that 
this  alone  was  sufficient  to  warrant  the  conclusion  that  they  voted  their 
party  ticket. 

It  is  further  shown  by  evidence  and  the  poll-list  that  all  the  colored 
men  from  the  coal  mines  voted  together,  there  being  two  crowds 
brought  to  each  poll  at  different  times ;  and  to  illustrate  the  testimony 
on  this  point  we  take  the  testimony  of  Thomas  S.  Barton  (Rec,  712) : 

Well,  they  came  up  in  a  wagon,  with  fifteen  or  twenty  in  it,  a  white  man  driving — 
a,  Republican — whooping  and  haUooing,  "Hurrah  for  Cutts!"  They  would  get  out 
of  the  wagon,  march  them  up  to  a  couple  of  men  who  had  tickets  for  them — Repub- 
lican tickets.  After  they  got  their  tickets  they  would  go  up  to  the  window  where 
they  voted,  and  they  would  vote  just  as  fast  as  they  could  be  sworn  in,  and  then  they 
would  load  them  up  and  start  back  with  them  after  another  load,  and  went  through, 
the  same  performance  next  time. 

The  same  is  shown  by  numerous  witnesses  as  to  all  the  colored  men 
at  both  polls ;  and  that  when  Greenback  or  Demo^tic  tickets  were 
offered  they  were  refused. 

The  testimony  is  voluminous  and  uncontradicted,  and  no  one  can 
read  it  without  being  convinced  that  all  the  colored  miners  voted  for 
contestee. 

We  have  no  hesitation  in  concluding  that  twenty-three  votes  should 
be  deducted  from  the  contestee  on  account  of  the  colored  vote  from 
Muchikinock. 

VIL 

Contestant  challenges  numerous  votes  cast  for  the  contestee  as  ille- 
gal in  the  various  counties  of  the  district.  The  contestee  concedes 
seven  of  these  as  sufficiently  proved  to  be  deducted,  and  the  proof 
shows  that  in  Jasper  County  that  of  Thomas  Hanson  (Rec,  13),  Valen- 
tine Rader  (Rec,  14),  C.  F.  Errickson  (Rec,  20),  Henry  S.  Hall,  and 
Thomas  Hall  should  be  deducted  as  cast  by  unnaturalized  foreigners. 
<See  contestant's  brief  in  reply,  page  7.) 


COOK   VS.   CUTTS.  251 

In  Mahaska  County,  Patric  O'Connor  voted  the  Kepublican  ticket 
(Kec,  108) ;  was  an  idiot  or  imbecile ;  had  been  so  adjudged,  and  was 
under  guardianship.     (Eec,  93,  94,  and  108.) 

In  Appanoose  County,  that  of  Mr.  Guernsey.  (See  contestant's  brief 
in  reply,  bottom  of  page  10.) 

Adding  these  votes  to  the  twenty-three  at  Muchikinock  and  two  at 
Albia  makes  thirty-two  to  be  deducted  from  incumbent,  and  reduces 
his  total  vote  to  18,108. 

VIII. 

The-  contestee  claims  that  cei^ain  persons  not  qualified  voters  voted 
for  the  contestant  in  various  parts  of  the  district. 

There  is  a  technical  objection  to  this  claim  which,  under  former  de- 
cisions, rests  upon  a  valid  foundation. 

There  is  in  the  record  no  answer  to  contestant's  notice.  There  is  on 
file  an  answer,  but  no  proof  of  service  except  ex  parte  affidavit,  and 
this  shows  no  personal  service  on  contestant.  It  has  been  expressly  held 
in  Follett  vs.  Dellano  and  in  Boyd  vs.  Kelso  that  this  cannot  be  ac- 
cepted as  proof  of  service.     (2  Bartlett,  121.) 

But  even  waving  this  it  cannot  be  claimed  that  more  than  seven  of 
the  votes  thus  challenged  can  be  considered  illegal.  Those  of  J.  H. 
Fisher,  L.  Alfrey,  and  Joseph  Fisher  may  well  be  considered  doubtful. 

They  lived  in  the  suburbs  of  the  city  of  Centerville,  which  was  in 
Center  Township.  A  short  time  before  the  election  the  board  of  super- 
visors divided  this  township ;  these  men  having  always  voted  at  the 
court-house,  and  being  legal  voters  of  the  count}",  voted  at  the  court- 
house, in  ignorance  of  the  change ;  but  we  have  included  them  as  illegal 
votes ;  also  the  vote  of  Buce  S.  Piernon  cast  in  John's  Township,  and 
that  of  William  Dines,  all  of  which  were  cast  in  Appanoose  County ; 
that  of  C.  F.  Kenaud,  in  Jasper  County,  and  that  of  A.  W.  Matox,  in 
Mahaska  County;  and  we  think  that  this  is  all  that  should  be  allowed 
under  this  head.  As  to  the  others,  they  are  fully  discussed  in  the  brief 
of  the  contestee  and  the  reply  of  contestant,  the  latter  beginning  page 
9.  As  to  some  of  these  votes  there  is  no  proof  whatever  that  they 
voted  except  hearsay.  As  to  others,  there  is  no  proof  for  whom  they 
voted,  except  the  voters' admissions,  which,  according  to  McCrary  and 
the  recent  case  of  Cessna  vs.  Myers,  is  insufficient. 

In  nearly  all  of  them  the  proof  relied  on  by  the  contestee  consists  of 
some  statement  of  the  voter  made  in  casual  conversation  to  a  witness 
under  circumstances  making  them  neither  competent  nor  reliable. 

But  even  if  the  evidence  be  accepted  as  competent  and  sufficient  to 
prove  the  facts  claimed,  in  no  case  would  the  facts  thus  established  be 
sufficient  to  show  the  vote  illegal.  The  objections  in  each  instance  are 
clearly  stated  in  contestant's  reply  brief,  beginning  on  page  9. 

But  if  the  list  of  illegal  votes  cast  for  contestant  should  be  extended, 
then,  under  the  same  rules  of  evidence,  the  list  of  those  cast  for  the 
contestee  of  the  same  class  must  be  enlarged  at  least  as  much.  In 
short,  under  any  rule  that  may  be  adopted,  applied  fairly  to  both  sides, 
this  class  of  votes  will  be  equal. 

The  contestee  claims  that  two  votes  should  be  added  to  his  and  two 
deducted  from  contestant  on  account  of  error  in  official  count  in  Wash- 
ington Township,  Appanoose  County. 

All  the  evidence  upon  this  point  is  that  one  witness,  on  April  18, 1881, 
counted  the  ballots  then  in  the  box,  and  found  this  change  from  the 
official  count. 


252  DIGEST    OF   ELECTION    CASES. 

There  are  two  insurmountable  objections  to  this :  First,  there  is  not 
the  slightest  proof  that  the  ballots  counted  April  18,  1881,  were  those 
cast  November  2,  1880. 

Under  the  authorities  quoted  in  contestant's  reply  brief,  page  2,  being 
McCrary  on  Elections,  and  Gooding  vs.  Wilson,  decided  in  1872,  and 
we  may  add  the  recent  case  of  People  vs.  Livingston,  79th  New  York 
Court  of  Appeals,  289,  all  directly  in  point,  this  must  be  aflarmatively 
shown  before  this  second  count  can  be  received  as  evidence. 

Not  only  this,  but  it  appears  affirmatively  that  the  box  was  exposed, 
and,  so  to'  speak,  in  the  possession  of  a  party  unfriendly  to  contestant, 
and  not  an  officer,  with  the  key  in  the  box,  until  April  16,  and  that 
before  this  recount  he  predicted  accu^^tely  the  change  that  a  recount 
would  disclose.     (Rec,  41.) 

The  ballots  were  counted  by  one  individual,  and  not  produced  and 
publicly  counted  before  the  officer  taking  the  deposition. 

Three  of  the  election  officers  appear  and  testify  to  the  correctness  of 
the  official  count. 

The  evidence  also  shows  an  error  of  two  against  the  contestant,  as 
shown  by  a  recount  of  the  ballots  in  another  township,  made  before  the 
county  canvassers  a  few  days  after  the  official  count,  but  we  have  ex- 
cluded this  upon  the  same  ground. 

IX. 

There  is  apparently  an  error  of  fivfe  in  the  official  canvass  in  Jasper 
County. 

The  tally -list  shows  five  votes  less  cast  for  the  contestee  than  were 
counted  for  him.  This  tally  list  is  a  part  of  the  official  returns,  and  an 
inspection  of  the  original  shows  clearly  how  the  mistake  in  the  final 
figures  was  made.  But  even  laying  this  aside,  the  evidence  on  illegal 
voting  shows  so  clearly  and  conclusively  that  contestant  was  duly 
elected,  that  we  deem  it  unnecessary  to  venture  upon  any  point  in  the 
least  degree  doubtful. 

We  recommend  to  the  committee  for  adoption  and  report  to  the  House 
the  following  resolutions : 

Eesolved,  That  M.  E.  Cutts  was  not  elected  as  Representative  from 
the  sixth  district  of  Iowa,  and  is  not  entitled  to  a  seat  on  the  floor  of 
this  House. 

Resolved,  That  John  C.  Cook  was  duly  elected  as  Representative  from 
the  sixth  district  of  Iowa,  and  is  entitled  to  a  seat  on  the  floor  of  this 
House. 


Contested-Election  Case  of  Cook  vs.  Cutts. 

Mr.  Thompson,  on  behalf  of  a  minority  of  the  Committee  on  Elections, 
to  whom  was  referred  the  contested-election  case  of  John  C.  Cook  vs. 
M.  E.  Cutts,  from  the  sixth  Congressional  district  of  Iowa,  respectfully 
submits  the  following 

JtEPOBT: 

In  the  sixth  Congressional  district  in  the  State  of  Iowa,  at  the  elec- 
tion held  November  2,  1880,  M.  E.  Cutts  and  John  C.  Cook  were  op- 
posing candidates  for  the  office  of  Representative  in  Congress  for  that 
district.    The  State  canvassers  found  and  returned  the  vote  as  follows : 


COOK   VS.   CUTTS.  253 

M.  E.  Cutis 18,017 

Cutts 2 

18, 019 

John  C.  Cook 17, 911 

Johu  Cook 2 

Cook 5 

17,918 
C  Cooper ^ 1 

Thereby  finding  a  majority  for  Outts  of  101  votes,  and  the  certificate 
of  election  was  given  to  Cutts,  who  took  his  seat  in  the  Forty-sev^enth 
Congress  and  still  retains  it.  Within  the  time  allowed  by  statute  Mr. 
Cook  served  notice  of  contest  on  Mr.  Cutts. 

Mr.  Cutts  also,  and  within  the  proper  time,  made  answer.  No  ques- 
tion arises  upon  the  notice  and  answer,  and  they  need  not  be  stated. 

From  the  notice  of  contest  it  will  appear  that  many  charges  of  fraud, 
illegal  voting,  «&c.,  are  made;  but  after  the  testimony  was  taken  con- 
testant relies  almost  entirely-  upon  the  alleged  illegal  votes  cast  by 
colored  voters  then  employed  at  the  coal  mines  in  Mahaska  County,  at 
a  place  known  as  Muchachinock.  It  will  therefore  be  unnecessary  to 
take  much  of  time  or  space  in  discussing  matters  unconnected  with  any 
other  transaction. 

It  is  proper  here  to  state  that  the  vote  rejected  by  the  county  board 
of  supervisors  (who,  by  the  laws  of  Iowa,  are  authorized  to  canvass  the 
vote  of  the  county),  to  wit,  the  vote  of  Cedar  and  Franklin  ToAvnships, 
in  Monroe  County,  by  which  Mr.  Cook  was  deprived  of  213  votes  which 
lie  should  have  allowed  him,  and  Mr.  Cutts  was  deprived  of  121  votes 
which  should  be  allowed,  thus  leaving  a  majority  of  9  votes  for  Mr.  Cutts 
in  the  final  count.  The  question  to  be  determined  now  is,  has  Mr. 
( 'ook,  by  satisfactory  evidence,  shown  illegal  votes  cast  for  Mr.  Cutts 
to  overcome  this  majority.  To  do  this  he,  as  before  stated,  has  relied 
chiefly  upon  the  vote  of  the  colored  miners  in  Mahaska  County,  and 
claims  that  he  has  shown  that  23  illegal  votes  were  cast  at  that  place 
for  Mr.  Cutts,  to  wit,  James  Usher,  James  Byres,  John  Clark,  Jessee  N. 
Carroll,  William  Garland,  Charles  Garrison,  William  H.  Hughes,  Spencer 
James,  John  W.  Jackson,  Andrew  Lewis,  Ernest  Lindsey,  John  Burk, 
G.  W.  Lewis,  Henry  Lewis,  Samuel  Maupier,  James  Martin,  Lindsey  Rob- 
inson, G.  W.  Randall,  Hardin  White  (or  Xelson  Woodford),  Samuel  Win- 
bush,  Randolph  Willis,  Joseph  James,  and  D.  F.  Woodard. 

To  establish  the  fact  that  these  men  were  not  legal  voters,  the  evi- 
dence of  one  Thomas  Shumate,  who  was  employed  by  the  coal  company 
to  bring  colored  men  from  Virginia,  is  principally  relied  upon  by  the 
contestant,  and  who  in  fact  did  at  various  times  collect  men  in  Virginia, 
and  bring  them  to  the  mines  in  Iowa,  for  the  company  in  whose  employ 
lie  was  at  that  time;  but  at  the  time  his  evidence  was  taken  he  was  not 
iu  the  employ  of  the  company.  Mr.  Shumate  was  not  asked  nor  did 
he  testify  to  anything  concerning  either  John  Burk  or  D.  F.  or  Ji^elsou 
AVoodard,  nor  has  any  one  attempted  to  show  that  they  were  not  legal 
voters.  We  therefore  drop  these  names  and  consider  the  21  yet  remain- 
ing. 

As  to  Randolph  Willis,  before  named.  Page  Irwin,  on  page  560,  tes- 
tifies that  he  came  to  the  mines  on  the  4th  day  of  April,  1880,  and  that 
said  Randolph  Willis  came  before  he  did.     (See  page  565  of  Record.) 

As  to  Joseph  James,  it  does  not  appear  that  he  voted  at  that  election, 
and  his  name  does  not  appear  on  the  poll-list,  and  no  one  pretends  that 


254  DIGEST    OF    ELECTION   CASES. 

he  was  seen  or  known  to  vote,  and  tlie  only  evidence  on  that  point  is 
one  Foster,  who,  on  page  368,  says : 

Question.  Did  this  James  go  with  yon  in  one  of  these  two  wagons  to  the  polls  ? 
Answer.  I  could  not  say  positively  whether  he  did  or  not;  I  think  he  was  at  the 
polls ;  can't  say  positively  whether  he  voted  or  not. 

It  is  true  that  the  name  of  Josiah  H.  James  does  appear  on  the  poll- 
list  ;  but  in  the  absence  of  evidence  establishing  the  fact  that  they  were 
one  and  the  same,  we  cannot  presume  they  were. 

It  is  evident  from  reading  the  evidence  of  Shumate  that  he  made 
several  trips  to  and  from  Virginia  and  brought  several  lots  of  persons 
to  the  mines,  and  it  is  equally  apparent  that  he  was  greatly  at  fault  as 
to  dates,  and  was  compelled  to  correct  them  in  many  instances,  and 
while  it  is  not  controverted  by  contestee  that  a  number  of  persons  were 
brought  to  the  mines  on  the  15th  of  May,  1880,  he  does  insist  that  those 
who  voted  at  the  election  were  not  of  those,  and  that  none  of  those  who 
voted  came  later  than  May  1, 1880  ;  in  proof  of  this  contestee  has  intro- 
duced the  evidence  of  several  of  these  men  who,  Mr.  Shumate  says,  came 
on  or  after  the  loth  of  May,  to  wit,  Jessie  N.  Carroll,  George  W.  Lewis, 
James  Martin,  and  Andrew  Turner,  each  of  whom  say  that  they  came 
to  the  mines  on  the  1st  day  of  May,  1880,  and  state  circumstances  by 
which  they  know  the  date. 

We  cannot  reject  their  evidence  without  violating  all  the  rules  of  evi- 
dence regulating  human  testimony,  and  by  which  we  arrive  at  truth, 
ifo  other  of  these  twenty-one  were  found  at  the  time  of  taking  the  evi- 
dence in  this  contest.  Another  fact  must  be  stated :  the  character  of 
Mr.  Shumate  for  truth  and  veracity  was  impeached  by  between  twenty- 
flve-and  thirty  witnesses,  both  white  and  colored  men,  many  of  whom 
had  known  him  in  Virginia  and  others  in  Iowa,  and  many  of  them  hav- 
ing had  dealings  with  bim.  A  large  number  of  witnesses,  most  of 
whom  had  had  but  a  short  acquaintance  with  him,  gave  him  a  good 
character  so  far  as  they  knew.  It  is  also  admitted  by  Shumate  while 
giving  his  evidence  that  he  had  repeatedly  stated  to  persons,  jirevious 
to  his  being  sworn  as  a  witness,  that  so  far  as  he  knew  there  were  no 
illegal  votes,  and  that  not  all  had  voted  who  had  a  right  to.  (See  Rec- 
ord, 402.) 

It  is  also  in  evidence  that  he  advised  men  to  vote  whom  he  knew 
were  not  legal  voters,  and,  as  a  matter  of  fact,  they  had  been  in  the 
State  but  a  few  days  (Record,  570,  604,  and  582),  and  he  states  that  he 
was  a  Democrat,  and  certainly  not  a  friend  of  Mr.  Cutts,  and  if  he  knew 
of  any  illegal  votes  it  is  clear  he  made  no  such  revelation  until  after  he 
had  been  discharged  by  the  company,  about  July  1,  1882,  although  the 
contest  had  been  going  on  from  December,  1880,  a  period  of  more  than 
one  year.  Another  fact  certainly  proved  is,  that  with  these  men  who 
swear  they  came  last  of  April  or  first  of  May,  came  the  following  women, 
to  wit,  Mary  Irvin,  Julia  Bess,  Annie  Carter,  Grace  Maupin,  Mary  Bates, 
Minnie  Garrison,  and  Mary  Robinson,  all  of  whom  are  shown  by  the 
pay-rolls  of  the  company  to  have  worked  twenty-four  days  in  the  month 
of  May,  and  received  of  the  company  pay  for  that  time,  and  it  is  estab- 
lished by  the  evidence  that  these  came  before  the  15th  of  May,  and 
shows  that  Shipmate  was  entirely  mistaken.  This  payment  for  work  is 
shown  by  the  pay-rolls  of  the  company,  which  were  introduced  in  evi- 
dence by  the  contestant.  True,  that  since  this  evidence  was  printed 
some  one  has  marked  on  the  margin  of  the  pay-rolls  opposite  the  names 
of  these  women,  ^^  mistake;  only  icorked  14  days  in  May.""  No  one  even 
insinuates  that  this  was  on  the  rolls  when  first  introduced,  or  when 


COOK  VS.   CUTTS.  255 

printed  last  session,  and  we  may  certainly  conclude  that  by  whomso- 
ever made  it  was  not  by  any  friend  of  Mr.  Cutts. 

It  is  not  necessary  to  conclude  that  Shumate  is  shown  to  be  of  bad 
repute  for  truth  and  veracity,  for  in  any  event  it  must  be  apparent  that 
he  was  mistaken  in  very  material  matters,  and  does  not  even  tend  to 
prove  that  illegal  votes  were  cast  as  claimed ;  but  direct  and  positive 
testimony  does  show  that  those  voting  on  the  day  of  election  were  not 
the  persons  who  came  on  the  15th  day  of  May. 

Much  has  been  said  in  evidence  about  a  certain  book  kept  by  the 
companj',  known  as  the  roster.  That  book,  by  the  consent  of  Mr. 
Cutts,  has  been  put  in  evidence  and  considered  by  the  committee ;  but 
it  fails  to  prove  any  one  thing  material  to  this  contest.  It  is  not  made 
up  or  kept  as  the  witness  seemed  to  think,  as  it  has  no  dates ;  it  con- 
tains individual  accounts  in  certain  months,  but  furnishes  no  dates  from 
which  to  determine  when  any  one  came.  Entries  relative  to  work  done 
by  individuals  first  appear  weeks  and  months  after  they  had  arrived 
and  commenced  work. 

As  a  circumstance  showing  of  how  little  value  is  the  roster  as  relia- 
ble evidence,  may  be  mentioned  the  fact  that  contestant  in  his  printed 
argument  claims  that  ^Nelson  Woodford,  John  Brook,  and  D.  F.  Wood- 
ward were  illegal  voters,  because  their  names  appear  on  the  roster  after 
the  names  of  those  who  came  in  May.  And  yet  Mr.  Shumate  himself 
says  that  Woodford  came  in  March  or  April,  and  sent  some  money  to 
Virginia  by  him  when  he  returned  in  May  (page  401  of  Eecord) ;  and 
thus  it  is  shown  very  conclusively  that  nothing  accurate  can  be  obtained 
from  the  roster. 

It  also  appears  that  the  name  of  Lewis  Buckner  is  the  last  one  on  the 
roster,  but  the  May  pay-rolls  show  that  he  worked  at  the  mines  during 
the  greater  part  or  all  of  May.    To  illustrate  : 

Page  51,  a  man  who  came  in  March  first  appears. 

Page  52,  a  man  who  came  in  March  first  appears. 

Page  52,  a  man  who  came  in  April  appears. 

Page  53,  a  man  who  came  in  March  appears. 

Page  53,  a  man  who  came  in  April  appears. 

Page  54,  two  men  who  came  in  March  appear. 

Page  55,  a  man  who  came  in  March  appears. 

Page  55,  a  man  who  came  in  April  appears. 

Page  56,  two  men  who  came  in  March  appear. 

Page  57,  one  woman  who  came  in  April  appears. 

Page  57,  one  woman  who  came  in  March  appears. 

Page  62,  two  that  came  in  May,  and  three  others  that  came  in  April, 

Page  62,  are  names  of  two  persons  who  came  in  May,  and  after  that 
are  names  of  some  who  came  in  April. 

And  Mr.  Shumate  had  to  admit  that  a  study  of  this  roster  would  not 
aid  him  to  fix  dates ;  nor  does  it  aid  in  any  particular  to  fix  the  date  of 
arrival  of  any  man  or  woman  brought  from  Virginia  or  employed  by 
the  company,  for  it  clearly  shows  that  no  attempt  was  made  by  the 
book-keeper  to  set  down  the  time  that  any  one  whose  accounts  were  kept 
arrived  at  the  mines,  and  we  refer  to  the  evidence  of  the  men  who  Shu- 
mate thinks  came  on  May  15, 1880.  So  that  the  fap ts  and  circumstances 
mentioned  by  which  they  fix  the  time  of  their  arrival  may  be  critically 
examined.  And  it  will  not  do  to  say  that,  because  they  were  ignorant 
black  men,  their  testimony  must  be  disregarded.  They  had  more  inter- 
est in  knowing  when  they  came  and  when  they  commenced  work  than 
Mr.  Shumate  could  possibly  have.    This  evidence  is  found  as  follows : 


256  DIGEST    OF   ELECTION    CASES. 

That  of  Page  Irvin,  Eecord,  p.  500;  W.  T.  Howard,  589;  J.  N.  Carrol, 
600;  James  Martin,  609;  George  W.  Lewis,  631;  and  Andrew  Turner, 
652.  Accepting  the  preponderance  of  the  evidence  on  this  point,  aside 
from  any  question  of  character  so  emphatically  involved,  and  for  the 
purposes  of  deciding  facts  only,  we  cannot  allow  these  votes  to  be  lost  to 
Mr.  Cutts  without  disregarding  the  evidence;  but  in  addition  to  these 
seven  men,  Eeuben  Hill,  page  585;  Taylor  Jefferson,  615;  G.  C.  Cane, 
639,  and  Mr.  Southal,  646,  each  of  whom  swear  that  a  number  of  people 
came  to  the  mines  about  May  1,  1880,  and  Turner  says  he  was  one  of 
the  number. 

The  presumption  of  the  law  is  that  any  vote  cast  is  a  legal  one;  but  in 
the  case  of  these  men,  whose  votes  are  claimed  to  be  illegal,  each  of 
them  was  challenged  by  one  of  contestant's  witnesses,  whose  evidence 
is  found  on  page  328  of  the  Record,  by  name  W.  J.  McFall.  He  states 
that  he  challenged  the  whole  of  the  colored  vote  at  East  Des  Moines 
precinct.  Other  witnesses  show  the  same  thing,  and,  indeed,  it  is  not 
denied  by  any  one,  and  that  they  each  had  administered  to  them  the 
oath  required  by  the  statute  of  Iowa,  which  is  as  follows  (Code  of  Iowa, 
1873,  sec.  620) : 

When  any  person  is  so  challenged,  *  *  »  and  the  person  insists  that  he  is  quali- 
fied, and  the  challenge  is  not  withdrawn,  one  of  the  judges  shall  tender  to  him  the  fol- 
lowing oath:  "  Yon  do  solemnly  swear  that  you  are  a  citizen  of  the  United  States; 
that  you  are  a  resident  of  this  precinct ;  that  yon  are  twenty -one  years  of  age,  as  you 
verily  believe;  that  you  have  been  a  resident  of  this  county  sixty  days,  and  of  this 
State  six  months  next  preceding  this  election."  And  if  he  takes  such  oath  his  vote 
shall  be  received.    (Iowa  Code  of  1873,  section  620.) 

It  is  not  to  be  presumed  that  these  men  would  or  did  commit  willful 
perjury,  and  we  would  be  compelled  to  so  find  if  these  votes  are  now  ex- 
cluded. And  it  would  be  equally  unjust  and  reprehensible  to  say,  from 
the  evidence,  that  these  men  did  not  know  what  they  were  swearing  to ; 
for  the  evidence  does  show  that  when  importuned  by  Mr.  Shumate  to 
go  and  vote,  and  advised  by  him  that  one  day's  residence  was  sufficient 
to  entitle  them  to  vote,  they  knew  better,  and  in  their  evidence  state 
their  knowledge  of  the  requirements  of  the  law  constituting  a  legal 
voter  in  the  State  of  Iowa.  I,  therefore,  without  setting  out  any  of  the  ev- 
idence, which,  if  true,  reflects  greatly  upon  the  character  of  the  contest- 
ant, and  would  create  a  strong  belief  that  his  course  of  conduct  in  pro- 
curing evidence  was  not  such  as  a  man  honestly  seeking  facts  and  the 
simple  truth  to  establish  it  would  have  resorted  to,  but  as  this  vote  is 
retained  and  allowed  Mr.  Cutts,  it  obviates  the  necessity  of  presenting 
in  report  much  of  the  evidence  which  otherwise  would  have  to  be  set 
out.  It  is  proper  to  say  that  Mr.  Cook  claims  that  the  vote  of  one  Lu- 
cius Bell,  of  Albia,  Monroe  County,  be  rejected,  because  of  the  evidence 
of  A.  E.  Crosby,  found  on  page  121  of  the  Record.  Mr.  Crosby  states 
that  Bell  told  him  he  had  come  from  Kansas  City  two  or  three  weeks 
before  election,  and  that  he  had  voted.  If  this  vote  was  illegal,  the  evi- 
dence fails  entirely  to  show  for  whom  he  voted,  and  we  cannot  take  it 
from  Mr.  Cutts  any  more  than  we  can  from  Mr.  Cook.  In  answer  to 
this:  Question.  "How  did  he  vote,  if  you  know? — Answer.  I  do  not 
know ;  I  think  he  voted  the  Republican  ticket."  The  first  part  of  this 
is  a  full  and  complete  answer  to  the  question ;  his  guess,  as  embodied  in 
latter  part,  does  not  prove  or  even  tend  to  prove  any  fact ;  the  witness 
does  not  pretend  that  he  asked  him  what  his  politics  were,  or  that  he 
had  any  means  of  knowing. 

The  evidence  of  Samuel  P.  Miller,  on  page  148,  certainly  shows  beyond 
much  doubt,  that  the  vote  of  John  Walker,  at  Albia,  in  Monroe  County, 
was  illegal  and  should  not  be  counted  for  Mr.  Cutts.    The  witness  states 


COOK   VS.    CUTTS.  257 

that  Walker  told  him  thftt  his  ( Walker's)  family  resided  in  Leavenworth. 
Kansas;  he  tohl  me  his  family  was  never  here  and  that  he  was  going 
back  to  Leavenworth."  The  witness  states  that  Walker  voted  at  the 
November  election  ;  that  he  saw  him  vote  the  fnll  Republican  ticket 
withont  a  scratch.  Contestant  also  claims  that  the  vote  of  oae  H.  C. 
Carson,  of  Keota,  ia  Keoknk  County,  should  be  taken  from  Mr.  Cutts. 
One  F.  M.  Gortner,  whose  evidence  is  found  page  24  of  the  Record, 
shows  that  Carson  voted;  he  was  challenged  and  took  the  oath.  This 
witness  is  asked  for  whom  Carson  voted,  and  he  answered,  "  I  thiuk  he 
voted  the  Republican  ticket.  I  seen  a  radical  Republican  taking  him  to 
the  polls.''  And  this  is  the  evidence  upon  which  the  vote  is  asked  to 
be  deducted  froui  Mr.  Cutts.  Simply  because  he  was  in  company  with 
a  Republican  going  to  the  polls,  and  on  that  fact  he  guesses  he  voted 
ttfe  Republican  ticket.  It  will  not  be  claimed  by  any  oue  that  this  is 
competent  evidence,  but  the  e^'idence  of  Mr.  Warrington,  found  on  page 
228,  clearly  shows  that  Carson  was  a  legal  resident  of  the  township  and 
was  a  legal  voter. 

The  same  objections  were  made  to  one  E.  H.  Rundell.  The  above 
witness,  on  page  27  of  the  Record,  shows  that  this  vote  was  challenged 
and  the  oath  taken,  and  that  he  voted.  The  evidence  of  H.  T.  Willis 
(page  221)  and  the  evidence  of  D.  McFarlane  (page  222)  clearly  estab- 
lishes the  legal  residence  of  Rundell  in  Keokuk  County,  and  a  legal  vo- 
ter. The  objections  made  to  the  vote  of  George  C.  Butcher,  of  Lafay- 
ette Township,  Keokuk  County,  is  so  well  and  fully  answered  by  him- 
self that  we  attach  his  answer,  when  a  witness,  as  found  on  page  224  of 
the  Record,  as  follows: 

George  C.  Dctcher,  of  lawful  age,  being  produced,  sworn,  and  examined  on  the 
part  of  the  incunibeut,  deposed  as  follows  : 

InteiTogatory  1.  State  your  name,  age,  and  ])lace  of  residence. — Answer.  My  name 
is  George  C.  Dutcher  ;  am  G8  yeare  of  age  ;  and  I  reside  in  Keota,  in  the  eastern  pre- 
cinct of  Lafayette  Township,  Keokuk  County,  Iowa. 

Int.  2.  How  long  have  you  lived  in  Keota  f — A.  Two  years,  last  month. 

Int.  3.  Did  you  vote  at  the  general  election  held  in  Keota  on  the  2d  dav  of  Novem- 
ber, 1880  ?— a!  I  did. 

Int.  4.  State  whether  or  not  you  moved  with  your  two  daughtei's  to  Council  Bluffs 
in  the  spring  of  1H'?0  ? — A.  I  did  not. 

Int.  5.  Had  yon  any  intention  of  removing  from  said  county  at  said  date  ? — A.  I 
had  no  such  intention.  In  May,  1880,  I  accepted  the  invitation  of  a  married  daugh- 
ter to  escort  her  and  her  fiimily  of  children  to  Colorado.  I  went  with  them,  intend- 
ing to  return  to  Iowa,  and  did  so  return.  It  was  never  my  intention  to  forfeit  my 
citizenship  in  Iowa,  and  I  have  not  done  so.  1  left  all  my  personal  effects  iu  Keota, 
iur»-nding  to  return  there,  and  did  so  return. 

Int.  6.  Are  you  acquainted  Avith  Joseph  Charlton,  who  resides  in  Keota? — A.  I  am. 

Int.  7.  Did  you  tell  said  Joseph  Charlton,  in  his  meat-market  in  Keota,  prior  to 
the  time  yon  started  for  Council  Bluffs,  that  you  were  going  to  Colorado  to  go  into 
business  with  your  son-in-law  f — A.  No;  I  said  nothing  of  the  kind. 

Cross-examination  waived. 

The  objections  to  the  vote  of  John  Ranly.of  Douglas  Township,  Appa- 
noose County,  is  fully  and  satisfactorily  met  by  the  evidence  brought 
out  on  cross  examination  of  the  witness  G.  W.  Taylor,  found  on  page  78. 
It  appears  that  Ranly  rented  his  farm  in  that  county,  reserving  a  room 
in  which  he  stored  his  goods  in  part,  and  went  to  Kansas  in  March,  1880, 
and  returned  in  September.  He  was  a  legal  voter,  and  the  evidence 
fails  entirely  to  show  for  whom  he  voted,  but  as  he  was  a  legal  voter  it 
is  immaterial. 

Dauiel  Hegans  is  also  challenged,  on  the  grounds  that  he  was  not  a 
resident  of  Iowa,  but  his  evidence,  on  pages  79  and  80  of  the  Record, 
shows  that  he  was  and  had  been  for  years  a  citizen  of  Appanoose  County, 
Iowa,  and  was  entitled  to  his  vote. 
H.  Mis.  35 17 


258  DIGEST  OF  ELECTION  CASES. 

George  Probasco  objected  to  because  uuder  age.  The  evidence  of  hi» 
father,  Noah  Probasco,  does  not  fix  his  age,  nor  is  it  shown  for  whom  he 
voted,  and  this  vote  cannot  be  taken  from  any  one. 

D.  H.  Elam  objected  for  the  same  reason  as  above.  His  father,  S.  P. 
Elam,  was  the  onlv  witness  to  prove  his  age.  His  evidence  is  found  on 
pages  85  and  86.  'He  does  not  fix  his  age,  and  does  not  pretend  to  da 
80 ;  nor  does  any  one  state  how  D.  H.  Elam  voted,  or  for  whom,  and  we 
cannot  presume  he  voted  for  Mr.  Cntts. 

The  following  are  said  not  to  have  been  unnaturalized  persons,  all 
of  whom  say  they  voted  for  Mr.  Cutts.    The  proof  is  questionable  at 

least : 

Thomas  Hanson,  page  13  of  the  Eecord. 

V.  Eader,  page  14  of  the  Eecord. 

C.  F.  Errickson,  page  20  of  the  Eecord.  ' 

H.  S.  Hall,  page  18  of  the  Eecord. 

Thomas  Hall,  page  18  of  the  Eecord. 

One  O'Connor  and  Guernsey  are  questioned,  but  the  claim  is  not 
sustained  as  to  them. 

The  following  votes  are  challenged  by  Mr.  Cutts,  and  he  claims  they 
are  illegal,  and  as  they  were  counted  for  Mr.  Cook  should  now  be  de- 
ducted. We  have  carefully  examined  the  evidence  relating  thereto,, 
and  find — 

1.  That  J.  H.  Fisher  lived  and  resided  in  the  township  of  Vermilion,, 
but  the  evidence  shows  he  voted  in  Center  Township.  (See  Eecord,  p. 
232.)    This  vote  cannot  be  counted.     Conceded  by  contestant. 

2.  L.  Alfrey  of  the  same  county  (Appanoose),  for  the  same  reason^ 
must  be  rejecteJl.     (See  Eecord,  p.  233.)    Conceded. 

3.  The  vote  of  Joseph  Fisher — lived  in  Vermilion  Township,  Appa- 
noose County,  and  voted  in  Center  Township.  (See  his  own  evidence, 
Eecord,  p.  234.)    This  vote  must  be  rejected.    Conceded. 

4.  The  vote  of  John  Eoberts,  of  Appanoose  County,  is  challenged  for 
the  reason  that  in  1878  he  left  the  State  and  remained  out  of  the  State 
nearly  two  years.  He  pre-empted  a  homestead  in  Kansas,  and  voted 
in  Chawker  City,  Kans.,  in  the  spring  of  1880.  (See  Eecord,  p.  236.). 
A  residence  of  six  months  in  Kansas  gives  a  man  a  legal  resideuce. 
This  man  was  single;  left  the  State;  went  to  Kansas;  took  a  homestead ; 
voted  at  the  election  in  the  State ;  gained  a  residence :  exercised  the 
right  of  a  citizen  ;  then  in  August,  1880,  returned  to  Ax)panoose  County, 
Iowa,  and  voted  at  the  November  election,  in  about  three  months  after 
his  return.  He  was  not  a  citizen  of  Iowa  when  he  voted,  and  the  vote 
is  illegal. 

5.  William  Dines,  of  Appanoose  County,  when  called  as  a  witness,, 
says  :  I  lived  in  Kansas  before  coming  to  Iowa  over  two  years,  and  it 
lacked  six  or  eight  days  of  being  six  months  before  the  2d  of  November, 
1880.  I  voted  for  Cook  ;  J.  C,  1  think,  were  his  initials.  (Eecord,  p. 
238.)    Conceded. 

This  man  had  not  gained  a  residence  in  Iowa,  and  his  vote  was  un- 
authorized and  cannot  be  allowed. 

6.  It  is  conceded  that  Bruce  S.  Pearson  voted  in  Center  Township,. 
Appanoose  County,  Iowa,  at  the  November  election,  1880,  to  wit,  on  the 
2d  day  of  November,  1880,  and  that  he  afterwards,  on  the  same  date, 
voted  in  John's  Township,  in  said  county,  and  that  he  voted  for  J.  C. 
Cook  for  member  of  Congress  at  each  of  said  places  on  said  day.  It  is 
also  conceded  that  said  Bruce  S.  Pearson  was  a  legal  voter,  and  entitled 
to  vote  in  Center  Township.    Conceded. 

This  being  equivi^lent  to  a  double  vote  cannot  be  counted. 


COOK   VS.   CUTTS.  259 

7.  James  Mahony  was  not  a  resident  of  Iowa,  bat  was  of  Kansas. 
Wm.  Crosby,  page  241,  testified  as  follows : 

Int.  5.  state,  if  you  know,  for  whom  he  voted  for  Representative  in  Congress  from, 
the  sixth  Congressional  district  of  Iowa  at  that  time  and  place. — A.  I  stood  within„ 
a  few  feet  of  him,  a  little  to  the  rear  and  one  side,  and  I  saw  him  open  out  the  ticket 
which  I  afterwards  saw  him  vote,  and  it  was  the  Democratic  ticket,  similar  to  those 
used  on  that  day.  all  of  which,  so  far  as  I  observed  them,  carried  the  name  of  J.  C^ 
Cook  as  a  candidate  for  Congress  from  the  sixth  Iowa  district ;  and,  so  far  as  I  could 
observe,  there  were  no  erasures  on  the  tick«t,  but  was  what  we  would  call  the  straight- 
ticket  throughout. 

Int.  6.  State  at  what  precinct,  if  any,  you  saw  him  vote  that  ticket. — A.  At  the 
Centerville  precinct,  in  Center  Township,  Appanoose  County,  State  of  Iowa. 

Int.  7.  State,  if  you  know,  where  his  residence  was  on  the  2d  of  November,  ISW), 
and  state  how  you  know. — A.  A  short  time  preceding  the  election,  perhaps  two  or 
three  weeks,  I  met  Mr.  Mahony  one  evening  in  front  of  the  Keystone  House,  in  Cen- 
terville, and  engaged  with  him  in  conversation,  in  the  course  of  which  he  told  me 
that  he  had  been  absent  all  summer  in  Kansas  and  the  Indian  Territory  ;  that  he  had 
taken  a  claim  in  Kansas,  and  that  he  had  returned  here  on  a  visit,  and  intended  going 
back  again,  and  I  believe  he  left  here  shortly  after  the  election.  At  all  events,  I  have 
not  seen  him  ;  at  all  events,  I  understand  he  has  been  gone  since  about  that  time. 

Int.  8.  State  if  you  know  whether  or  not  he  had  heen  absent  from  Appanoose- 
Connty  at  any  time  previous  to  the  election  in  1880;  and,  if  so,  about  how  long. — A. 
I  had  not  seen  him  for  a  number  of  months  prior  to  the  time  I  met  him,  as  I  before^ 
stated  ;  I  do  not  recollect  just  how  long  he  said  he  had  been  gone,  but  it  had  covered, 
a  period  of  several  mouths  at  least;  he  had  just  lately  returned  when  I  met  him  and 
had  this  conversation  with  him  ;  at  least  so  he  stated. 

Int.  9.  State  whether  he  was  a  man  of  a  family  or  an  unmarried  man. — A.  I  think 
he  was  unmarried. 

Int.  10.  State,  if  you  know,  what  ticket,  if  any,  he  was  working  for  at  the  Novem- 
ber election,  1880. — A.  I  think  he  was  distributing  Democratic  tickets,  and  working 
for  that  ticket. 

Cross-examination : 

Int.  1.  Mahony  has  beeu  around  here  for  the  last  ten  years,  hasn't  he? — A.  I  am 
unable  to  state  just  how  long  he  has  been  about  Centerville;  but  he  has  been  hera 
irregularly  for  four  or  five  years  at  least,  possibly  longer,  prior  to  1S80. 

Int.  '2.  What  is  your  politics  ? 

(Objected  to  as  improper  cross  examination  and  immaterial.) 

A.  I  am  a  Republican.  • 

Int.  3.  You  have  been  taking  a  very  active  part  in  politics  for  the  last  few  years  in 
Appanoose  Countv,  Iowa  ? — A.  Yes,  sir ;  quite  active. 

W.  O.  CROSLEY. 

This  vote  must  be  rejected. 

X.  Anderson,  as  shown  by  the  evidence  of  A.  Carlson,  page  253, 
moved  into  ]NIoiilton  [Washington]  Township  on  the  14th  day  of  Septem- 
ber, 1880,  from  Elden,  Iowa,  and  not  in  Appanoose  County,  where  An- 
derson voted  on  November  2,  1880;  not  being  in  the  county  sixty  days 
prior  to  election,  was  ineligible,  and  the  vote  cannot  be  counted. 

9.  Wra.  Ellis  was  not  a  resident  of  the  county  sixty  days  before  the 
day  of  election,  as  shown  by  the  evidence  of  W.  T.  Myers,  page  254, 
who  says  that  Ellis  moved  into  Appanoose  County  on  the  20th  day  of 
September,  1880,  and  that  Ellis  told  him  that  he  had  come  from  Alter- 
ton,  Wayne  County,  Iowa ;  and  J.  E.  Luse,  on  page  255,  swears  that 
Ellis  voted  for  ilr.  Cook ;  this  vote  should  be  rejected. 

10.  Sim  Smith  is  challenged  as  being  a  non-resident  of  Appanoose 
County  when  he  voted.  H.  W.  Edwards,  page  249,  testified  that  Smith 
and  his  wife  told  him  that  they  came  from  the  State  of  Missouri,  where 
they  had  lived  for  several  years;  that  Smith  had  only  been  in  Appanoose 
County  about  three  months  before  election  and  left  immediately  after 
voting  and  has  not  been  heard  of  since.  Mr.  Wm.  Marshall,  page  252, 
testities  that  he  was  at  the  election,  seen  this  Sim  Smith  vote  at  Moul- 
ton,  Appanoose  County,  and  that  he  voted  the  straight  Democratic 
ticket.    Tlfti  vote  was  also  illegal. 


*2Q0  DIGEST    OF   ELECTION    CASES. 

11.  James  Ewart  voted  iu  Albiu,  Mouroe  County.  See  the  evidence 
of  Samuel  F.  Miller,  page  209,  who  says  that  Ewart  voted  a  Greenback 
ticket  with  Mr.  Cook's  name  on  it,  and  Henry  Miller,  page  211,  says 
that  Ewart  came  from  Colorado  and  was  in  the  county  only  two  or  three 
months.     It  cannot  be  counted.    Mr.  Loyd  testifies  to  same  thing. 

12.  C.  F.  Renaud  came  from  France  and  was  never  naturalized.  Voted 
for  Cook.  (See  his  own  evidence,  Eecord,  pages  189  and  190.)  Cannot 
be  counted.    Conceded. 

13.  Charles  Heyholt  was  born  in  Germany.  iJ^To  evidence  that  his 
father  was  ever  naturalized,  and  he  as  a  witness  states  that  he  never 
had  or  took  out  any  papers.  (See  his  own  evidence,  page  192.)  This 
vote  must  be  rejected. 

14.  C.  W.  Thompson  came  to  Kellogg,  Jasper  County,  on  the  14th 
•day  of  July,  from  New  Mexico.  Voted  at  November  election  the  straight 
Democratic  ticket  and  then  left.  (See  evidence  of  Chas.  Dutro,  page 
185.)    Was  not  a  legal  voter. 

15.  Henry  Ohler  voted  in  Buena  Vista,  Jasper  County.  On  page  187 
the  following: 

B.  W.  Blackwood,  of  lawful  age,  being  produced,  sworn,  aud  examined  on  tlie 
part  of  the  incumbent,  deposed  as  follows : 

Interrogatory  1.  State  your  name,  age,  place  of  lesidence,  and  occupation. — A.  B. 
"W.  Blackwood  ;  age,  thirty-seven  ;  residence,  Buena  Vista  Township,  Jasper  County, 
Iowa  ;  farmer  and  stock-buyer. 

Int.  2.  What  conversation,  if  any,  did  yon  have  with  Henry  Ohler  with  reference 
to  his  right  to  vote  in  that  county  at  the  last  general  election  ? — A.  I  was  passing  the 
residence  of  his  mother  ;  I  halted,  and  a  conversation  came  up  between  me  and  Henry 
Ohler.  He  stated  to  me  that  he  was  only  temporary  located  here,  and  had  no  inten- 
tion of  locating  in  this  State  or  remaining  in  the  same;  that  his  home  Avas  in  Ne- 
braska, and  that  he  intended  returning  there  soon.  He  also  stated  that  he  was  just 
here  on  a  visit ;  that  he  had  not  been  here  to  see  his  folks  for  ten  years. 

Int.  3.  When  was  this  conversation  ? — A.  During  the  latter  part  of  September  or 
the  fore  part  of  October,  1880. 

B.  W.  BLACKWOOD. 

This  vote  rejected. 

16.  17.  The  votes  of  William  Price  and  W.  M.  Wilkinson,  who  voted 
at  Oskaloosa,  Mahaska  County,  are  asked  to  be  rejected  for  the  reasons 
shown  in  the  following  evidence,  pages  59  and  60 : 

W.  F.  HORAHAN,  being  of  lawful  age,  produced,  sworn,  and  examined,  deposed  as 
follows : 

Interrogatary  1.  State  your  name,  age,  place  of  residence,  and  occupation. — An- 
swer. Name,  W.  F.  Horahan  ;  age,  forty-live  years ;  residence,  Oskaloosa,  lovi^a  ;  pro- 
prietor of  coal  mine. 

Int.  2.  Do  you  know  William  Price  ? — A.  Yes,  sir  ;  I  do. 

Int.  2  [i].  Where  was  he  during  last  fall  ?— A.  He  commenced  working  for  ine  on 
the  4th  day  of  September,  1880.  He  worked  until  about  tjie  25th  of  the  same  month 
for  me. 

Int.  3.  When  he  came  to  you  for  employment  where  did  he  say  he  came  from,  and 
what  did  he  then  say  he  had  been  doing  ? — A.  He  stated  that  he  came  from  Illinois 
directly  here  to  this  place. 

Int.  4.  Had  you  ever  known  him  before  ?— A,  I  did ;  he  worked  for  me  a  short  time 
the  winter  before. 

Int.  5.  How  long  did  he  work  for  you  the  previous  winter ;  where  did  he  come  from, 
and  where  did  he  go  to  when  he  quit  work  ?— A.  I  think  he  worked  for  me  over  a 
month,  but  when  he  quit  work  he  stated  that  he  Avas  going  to  Illinois.  I  think  he 
quit  work  in  March.     I  did  not  know  where  he  came  from. 

Int.  6.  Had  he  been  a  resident  of  this  country,  or  had  he  been  a  new  comer,  wh(  u 
you  first  employed  him  ?— A.  I  could  not  say ;  I  knew  he  was  a  coal-miner  by  his  lu  - 
tioDS,  and  an  old  hand  at  the  business,  and  a  stranger  to  me. 

Int.  7.  Do  you  know  W.  M.  Wilkinson ;  if  so,  when  did  you  first  know  him,  aud 
for  hoAv  long  a  time  did  you  know  him  ?— A.  About  the  middle  of  September,  1880,  a 
man  by  that  name  came  to  my  place  asking  for  work,  and  I  gave  him  employment. 

Int.  8.  Where  did  he  say  he  was  from  directly  ?— A.  To  the  best  of  juy  recollection 
he  told  me  he  came  direct  from  Minnesota. 


COOK   VS.    CUTTS.  261 

Int.  9.  Where  did  AVilkinsoa  and  Price  board  when  they  were  working  for  you  T — 
A.  They  tohl  me  they  were  ln>arding  with  Henry  Colfleck. 

(The  coutestant  objects  to  each  question  and  answer  of  the  foregoing  witness,  for 
the  reason  that  the  names  of  the  persons  alleged  to  have  voted  illegally  are  not  set 
out  and  contained  in  the  incumbent's  answers.) 

W.  F.  HORAHAN. 

These  votes  rejected. 

18.  Josiab  McCoy  voted  at  Black  Oak,  Mabaska  County.  The  evi- 
dence of  r>avid  L.  Bowman,  pages  71  and  72,  shows  as  follows : 

Int.  12.  Do  you  know  Josiah  McCoy  ;  if  so,  how  long  have  you  known  him  ? — A. 
Ye.s,  sir ;  I  have  known  him  for  five  or  six  years. 

Int.  13.  Did  he  vote  at  the  last  November  election;  if  so,  where! — A.  Yes, sir;  he 
voted  at  Leightou,  Black  Oak  Township,  Mahaska  County,  Iowa. 

Int.  14.  What  are  his  politics! — A.  He  told  me  that  he  had  voted  the  Democratic 
ticket,  and  always  expected  to. 

Int.  lo.  State  what  you  know  about  his  haA'ing  resided  out  of  the  State  at  any  time 
prior  to  said  election. — A.  I  think  the  first  time  he  left  till  the  last  time  he  came  back 
he  was  out  over  one  year.  He  first  went  to  Kansas  in  the  fall  of  1879;  then  came 
back  in  the  summer  of  1S80,  and  went  to  Indiana.  I  did  not  see  him  any  more  until 
•  lection  day. 

Int.  16.  Was  he  a  married  man  ? — A.  He  was. 

Int.  17.  Did  he  take  his  wife,  his  goods,  and  eflfects  with  him? — A.  Yes,  sir ;  all  but 
what  he  sold  ;  he  sold  most  of  his  goods. 

Also,  on  page  6G,  the  evidence  of  one  John  W.  Walton,  as  follows : 

Int.  8.  Did  Josiah  McCoy  vote  at  Black  Oak  Township  at  that  election  ? — A.  I  did 
not  see  him  vote. 

Int.  9.  State  what  you  know  about  his  having  left  the  country,  where  he  went  to, 
and  how  long  he  was  gone. — A.  Some  time  during  the  summer  of  1879  he  sold  off  what 
effects  he  had,  except  his  team  and  wagon,  and  went  to  Kansas.  He  came  back  early 
in  the  spring  of  1880.  Then  he  went  to  Indiana,  and  staid  there  until  a  few  days  be- 
fore the  election. 

Int.  10.  When  he  went  to  Kansas  did  he  take  his  team  and  family  with  him  ! — A. 
He  did. 

Int.  11.  What  did  he  tell  yon,  if  anything,  about  what  he  had  done  in  Kansas? — 
A.  He  said  he  had  put  in  a  crop  of  wheat  and  sold  it. 

Int.  12.  State,  if  you  know,  for  what  purpose  he  went  to  Indiana,  and  with  what 
intent. — A,  From  conversations  with  him  and  his  friends,  he  went  there  for  the  pur- 
pose of  making  it  his  future  home. 

Int.  13.  What  was  the  politics  of  McCoy  ? — A.  I  have  always  understoad  from  Mm 
that  he  was  a  Democrat.  * 

This  vote  was  illegal. 

19.  D.  H.  Roodny.sen  was  not  a  citizen  ;  he  was  born  in  Holland  and 
never  naturalized.  See  the  evidence  of  W.  G.  K.  Muntendam,  page  70 
of  the  Kecord,  to  whom  Rooduysen  admitted  on  the  day  of  election  the 
above  stated  facts.    This  vote  was  illegal. 

20.  A.  W.  Mattox  was  a  minor.  The  evidence  of  James  Hayes,  on 
page  04,  is  as  follows : 

Int.  3.  Are  yt>u  acquainted  with  A.  W.  or  Aaron  W.  Mattox  ;  if  so,  how  long  have 
you  known  him  ?  What  is  his  age,  and  where  does  he  live,  and  where  did  he  live  on 
the  second  of  November  last? — A.  Yes,  sir;  I  am.  I  have  known  him  from  his  in- 
fancy, from  the  day  he  was  bom.  He  was  (21)  twenty-one  years  old  in  this  last 
March  (March,  1881).  He  is  now  working  for  a  man  by  the  name  of  Artemus  Flan- 
ders, in  Des  Moines  Township.  On  the  second  day  of  November  last  (the  day  of 
election)  he  was  living  with  his  brother,  A.  J.  Mattox,  in  Jefferson  Township.  He 
went  to  the  polls  with  his  brother,  and  his  father  also  was  in  the  crowd. 

Int.  4.  How  do  you  know  his  age  ? — A.  Well,  one  thing  makes  me  remember  his  age 
is  that  this  Aaroii  W.  Mattox  and  one  of  Henry  Emland's  girls  are  of  nearly  the  same 
age.  They  were  both  of  them  born  the  same  week.  My  wife,  as  it  is  now,  worked  for 
Mrs.  Emlaud  when  this  girl  was  born,  and  I  was  living  with  Samuel  Coney,  about 
two  and  one-half  miles  from  there,  at  that  time,  and  was  intimately  acquainted  with 
the  family  at  that  time,  and  was  frequently  there.  I  was  married  in  August,  1860, 
following  the  birth  of  this  Aaron  W.  Mattox. 

Int.  5.  State  what  month  and  year  he  was  bom. — A.  He  was  born  in  March,  1860. 


262  DIGEST  OF  ELECTION  CASES. 

Int.  6.  Have  you  had  auy  conversation  with  his  father  or  brothers  since  the  elec- 
tion about  his  age;  if  so,  what  did  they  sayf— A.  I  have  with  two  of  his  brothers, 
not  with  his  father.  They  both  said  he  was  not  twenty-one  years  old  when  he  voted. 
But  they  said  they  thought  he  had  done  nothing  wrong,  from  the  fact  that  the  board 
did  not  challenge  his  vote  when  he  voted. 

Int.  7.  Who  fixed  his  ticket  for  him  when  he  voted?— A.  Andrew  J.  Wharton  did. 

Int!  8.  What  kind  of  tickets  were  they  ?— A.  Democratic  tickets. 

Int.  9.  What  was  the  politics  of  A.  J.  Wharton  ?— A.  Democratic. 

Int.  10.  What  was  the  politics  of  his  father,  C.  Mattox,  and  of  the  brothers?— A. 
Democratic. 

Int.  11.  Do  you  know  John  McCormick? — A.  Yes,  sir. 

Int.  12.  How  long  have  you  known  him  ? — A.  Six  years. 

Int.  13.  When  did  he  go  to  Nebraska  or  Kansas  ;  how  long  did  he  remain,  and 
about  what  time  did  he  get  back  to  Mahaska  County  ? — A.  He  went  in  the  fall  of 
1879,  and  came  back  only  a  few  days  before  the  election  in  1880. 

Int.  14.  Did  he  take  his  family  with  him? — A.  He  did. 

Int.  15.  What  do  you  know  about  his  having  bought  or  rented  a  farm  in  Kansas  or 
Nebraska,  and  having  raised  a  crop,  while  he  was  gone  ? — A.  I  have  understood  that 
he  bought  a  farm  in  Kansas  and  raised  a  crop  on  the  same. 

Int.  16.  Did  he  vote  at  the  last  November  election? — A.  Hetoldmehimself  he  voted 
as  I  was  going  to  the  polls. 

Int.  17.  What  are  his  politics  ? — A,  His  political  doctrine  and  views  are  Democratic . 

Cross-examination : 

Int.  19.  Where  was  said  Mattox  born  ?— A.  In  JeflFerson  Township. 

Int.  20.  Do  you  remember  the  time  of  his  birth,  or  is  your  statement  as  to  his 
birth  based  wholly  or  in  part  upon  the  statement  of  your  wife  as  to  the  time  ? — A. 
It  is  based  upon  my  own  recollection. 

This  vote  is  conceded  and  is  rejected,  as  the  man  was  a  minor. 

21.  A.  Craven,  according  to  the  evidence  of  Ezekial  Ferris  (pages  54 
and  55),  left  the  State  of  Iowa,  a  single  man,  about  July,  1879,  and  came 
back  about  September,  1880;  voted  the  Democratic  ticket ;  during  this 
time  he  was  in  Missouri  and  Nebraska;  lost  his  residence,  and  was  not 
a  legal  voter. 

22.  A.  Bullman  :  By  his  own  evidence,  on  page  266,  it  is  shown  that 
he  voted  for  Mr.  Cook  ;  that  in  March,  1878,  he  left  Iowa  and  went  to 
Coffeyville,  Kans. ;  remained  there  until  he  gained  a  residence ;  com- 
menced a  suit  in  the  court  of  Kansas  for  divorce  and  obtained  a  decree; 
married  in  that  town  in  1880,  and  came  back  to  Iowa  in  June,  1880.  It 
is  immaterial  what  his  intentions  were  ;  the  fact  remains  that  he  gained 
a  residence  in  Kansas,  and  the  laws  of  that  State  require  a  residence 
of  six  months  before  a  man  can  sue  for  divorce.  (See  statutes  of  Kan- 
sas, sec.  3872.) 

J.  W.  Shelley  refused  to  take  the  oath  required  by  statute.  The  evi- 
dence of  Josiah  Stark,  page  29J,  states  that  Shelley  lived  nearly  every- 
where; also  the  evidence  of  his  father,  B.  M.  Shelly,  page  296.  This 
voter  refused  to  take  the  oath  prescribed  by  statute,  as  he  would  not 
swear  that  he  had  been  in  the  county  sixt\  days,  and  that  part  was 
omitted  and  his  vote  received,  ivo  one  can  doubt  the  illeg^ility  of  this 
action  on  part  of  the  judges.     This  vote  rejected. 

It  will  be  seen  that  in  the  conclusions  reached  that  the  balance  of  il- 
legal votes  as  found  is  in  favor  of  the  incumbent  to  the  number  of  twenty, 
and  this  leaves  the  majority  for  him  as  found  to  be  fifteen  votes  at  least. 

The  following  resolution  is  recommended  : 

Resolved,  That  Marcenus  E.  Cutts  was  duly  elected  as  Eepreseutative 
from  the  sixth  Iowa  Congi-essional  district  to  the  Forty-seventh  Con- 
fess, and  is  entitled  to  the  seat  accordingly. 

Mr.  Ranney,  In  the  case  of  Cook  vs.  Cutts,  makes  the  following  re- 
port : 


COOK   VS.   CUTTS.  263 

I  concur  in  the  conclusion  reached  in  the  minority  report  made  by 
Mr.  Thompson  that  tbe  contestee  should  be  declared  entitled  to  retain 
his  seat ;  but  I  prefer  to  report  the  case  as  it  presents  itself  to  my 
mind. 

The  case  may  be  properly  stripped  of  much  of  its  detail.  It  is  well, 
however,  to  state  briefly  what  is  thus  summarily  disposed  of. 


I  allow  for  the  contestant  the  two  votes  cast  for  "  John  Cook,"  the 
five  cast  for  "  Cook,''  disallow  the  vote  cast  for  "  C.  Cooper,"  count  the 
ninety-two  net  majority  in  the  votes  of  Cedar  and  Franklin  Townships, 
which  were  rejected  in  the  canvass  because  of  alleged  defective  re- 
turns. 

I  allow  for  the  contestee  the  two  votes  cast  for  "  Cutts."  Also,  one 
vote  which  got  into  the  wrong  box  in  Washington  Township,  and  was 
rejected.  If  not  counted,  thirty  votes  cast  and  counted  for  contestant 
should  be  disallowed  for  same  reason.     (Record,  p.  213-14-16-19.) 

I  take  the  certificate  of  return  made  in  the  canvass  of  the  votes  in 
Madison  Township,  in  Mahaska  County,  disallowing  the  vote  claimed  by 
the  contestant.  It  is  sworn  by  one  witness  that  on  one  ballot  the  name 
of  "  M.  E.  Cutts"  was  erased,  and  "John  C.  Cook"  written  thereon  "  op- 
posite the  head  of  the  State  ticket."  We  have  not  got  before  us  the 
original  ballot  or  a  copy  of  the  same  for  construction.  The  officers  of 
election  did  have  the  original,  and  construed  the  same  by  personal  in- 
spection. It  is  impossible  to  determine  from  any  evidence  before  us  for 
what  office  the  name  "  John  C.  Cook  "  was  designed. 

I  allow  the  official  count  in  Jasper  County  and  Appanoose  County 
to  stand  in  the  two  instances  where  there  was  a  discrepancy  between 
the  certificate  of  return  and  the  tally  book  of  five  votes  in  one  case  and 
of  two  in  another.  It  may  possibly  be  true  that  there  was  a  mistake  in 
the  count  in  the  case  of  the  five  votes ;  but  on  the  one  side  we  have  only 
the  canvass  and  return  as  made  and  the  tally-list.  Taken  alone,  I  think 
the  retarn  is  higher  evidence  than  the  tally-list.  But  the  evidence  of 
the  manager  is  that  the  vote  was  as  returned,  although  he  does  not  tes- 
tify specifically  as  to  how  he  knows,  or  where  he  gets  the  figures  which 
he  swears  to.  How  the  discrepancy  occurred  is  not  explained  by  any 
evidence  aliunde,  unless  by  the  fact  that  by  the  usual  course  pursued  in 
counting  the  ballots  all  are  first  counted  and  the  tally-list  thus  made. 
Tl^e  divisions  of  five  in  the  tally-list  niaj'  not  have  been  made  so  as  to 
conform  to  the  aggregate  vote.  It  is,  therefore,  left  mostly  to  conject- 
ure as  to  what  the  explanation  is,  and  I  take  the  return,  supported 
faintly  as  it  is  by  the  manager.  As  to  the  other  discrepancy  it  is  ex- 
l)lained,  and  the  oral  evidence  is  such  as  not  to  disturb  the  official  count 
when  used  to  explain  the  alleged  discrepancy. 

This  leaves  contestee  with  a  majority  of  ten  to  this  point. 

II. 

I  now  come  to  the  issues  seriously  in  dispute. 

There  are  claims  and  counterclaims  preferred  by  the  respective  par- 
ties relating  to  scattered  individual  votes,  independently  of  the  colored 
vote  from  the  mines.  Contestant  concedes  eight  illegal  votes  as  cast 
for  himself  in  this  class,  and  claims  to  have  proved  seven  as  cast  for 
contestee  (second  brief,  p.  19). 

In  case  of  five  of  the  latter  class,  Hanson  (13),  Rader  (14),  Erickson  (20)^ 


264  DIGEST    OF    ELECTION    CASES. 

two  Halls  (18),  we  have  ouly  their  own  evidence  respectively  to  prove 
the  facts.  The  claim  is  they  were  not  naturalized.  One  of  them  proves 
it,  if  at  all,  by  stating  what  his  father  said  about  his  having  been  natu- 
ralized. It  is  hearsay  and  not  competent.  The  presumption  of  law  is 
that  they  were  naturalized,  as  they  voted.  I  do  not  deem  it  wise  or 
safe  to  rely  on  the  evidence  of  the  voter  alone  in  these  instances  to 
prove  the  contrary.  He  is  presumed  to  kiiow  the  law,  and  is  alleging 
his  own  turpitude  when,  if  true,  he  calls  upon  us  without  adequate  proof 
of  an  innocent  mistake  to  believe  that  he  violated  the  law  and  voted 
illegally,  and  one  of  them  after  being  challenged.  I  can  place  little  re- 
liance on  what  he  now  says  to  stultify  or  convict  himself  of  an  offense. 
I  cannot  omit  to  call  the  attention  of  the  House  to  the  evidence  ad- 
duced to  show  that  contestant  was  engaged  in  manipulating  witnesses 
in  his  own  behalf  by  the  use  and  promise  of  money ;  will  not  express 
an  opinion  on  that  point,  but  only  refer  to  the  record  for  others  to  judge, 
as,  if  true,  it  serves  to  destrov  or  seriously  impair  confidence  in  evidence 
which  he  adduces.  (Eecord,  pp.  020,  590,  637,  588,  618,  602,  590,  532, 
533.)    Contestee  makes  great  reliance  on  this  in  his  brief. 

O'Connor  (93,  94,  108)  is  attempted  to  be  proved  of  an  unsound  mind 
when  he  voted.  The  evidence  adduced  does  not  come  from  experts, 
and  is  for  this  reason  and  otherwise  incompetent  or  insutficient.  The 
letters  of  guardianship  were  issued  in  May,  1875.  The  presumption  of 
law  must  prevail  here  as  against  this  evidence  irrespective  of  a  ques- 
tion of  law.  Besides,  R.  P.  Bolles  (p.  58)  testifies  that  he  (a  lawyei")  and 
Mr.  Havens  were  the  witnesses  who  got  O'Connor  naturalized  in  Octo- 
ber, 1880,  Judge  Blan^hard  administering  the  oath.  The  witnesses 
were  Greenbackers  in  politics.  This  would  hardly  be  done  if  O'Connor 
was  an  imbecile  or  of  unsound  mind,  as  pretended  now.  They  j>robably 
got  it  done  so  he  might  vote  their  ticket,  and  because  he  voted  the  other 
way  they  now  deem  him  incompetent  to  vote  ! 

D.  R.  Guernsey,  the  seventh  (Record,  74,  75,  76,  84),  is  claimed  not  to 
have  his  home  in  John's  Township,  where  he  voted  for  Cutts.  His  was 
the  only  evidence,  and  he  swears  to  his  home  being  in  John's  Town- 
ship.   Claim  of  contestant  disallowed. 

If  anything  more  is  needed  to  dispose  of  the  first  five  it  will  be  seen 
that  in  case  of  Hanson  part  of  the  requisite  evidence  consists  of  an 
alleged  statement  of  his  father,  which  is  not  competent.  There  being 
a  declaration  of  intention  there  was  a  record  in  court,  and  the  same 
should  have  been  put  in  evidence  by  copy  as  the  best  evidence.  Same 
is  true  of  Rader. 

The  majority  report  errs  when  it  says  contestee  concedes  seven 
illegal  votes  as  cast  for  him.  He  does  not  concede  it  only  as  proved 
"6y  evidence  more  or  kss  direct  and  satisfactory.^^  (Brief,  p.  26.)  To  me 
it  is  less  than  satisfactory.  He  does  not  admit  that  they  should  be 
deducted,  but  says  "»/  they  should  be,"  &c.  It  is  not  in  the  power 
of  contestee  to  give  away  the  rights  of  the  public  and  allow  another 
man  to  take  the  seat  even  by  consent,  to  the  detriment  of  the  public 
and  the  Treasury.  Whereas  contestant  alone  is  interested  in  the  result 
now,  and  that  only  from  personal  pride  and  pecuniarily,  and  I  should 
give  more  heed  to  his  concession  as  affecting  his  claim  made  in  the 
contest  if  there  was  occasion  for  it. 

The  eight  votes  cast  for  himself  illegally,  as  conceded  by  contestant^ 
I  reject  as  proved  also.  The  evidence  satisfies  me  that  the  illegal  votes 
cast  for  contestant  exceed  eight  iu  number,  and  that  ten  at  least  are 
satisfactorily  proved,  leaving  a  balance  of  ten  iu  favor  of  the  contestee 
on  this  miscellaneous  class.    Those  named  by  contestant  and  conceded 


COOK   VS     CUTTS.  265 

are  the  two  Fishers,  Alfrev,  Pierson,  Diues,  Renaiid,  and  Mattox.  I  add 
William  Ellis  (p.  254),  Shelly  (pp.  293,  258,  265,  2C1),  and  Roberts  (p. 
230).  Shelly  was  challenged  and  allowed  to  vote  wrongfully,  and  is  not 
now  shown  to  have  been  an  elector. 

Mr.  Thompson  has  gone  over  them  and  comes  to  the  conclusion  that 
there  is  a  balance  of  fourteen  votes  in  favor  of  the  contestee,  and  hi» 
report  furnishes  ample  means  of  getting  at  the  evidence  so  as  to  verify 
or  refute  his  conclusions.  I  disallow  the  claim  as  to  the  vote  of  John 
W.  Walker,  which  he  allows,  and  find  it  should  be  counted  for  the  con- 
testee, deeming  the  evidence  relied  upon  by  contestant  in  respect  to 
that  as  incompetent  and  insufficient.  My  conclusion  upon  present 
views  is  that  there  is  a  balance  of  ten  votes  in  these  claims  and  counter- 
claims in  favor  of  the  contestee.  As  much  doubt  is  thrown  on  twenty 
as  there  is  on  sixteen  of  the  colored  vote  hereinafter  considered. 

ni. 

I  now  come  to  the  issues  presented  which  constitute  the  chief  field 
of  contention. 

1.  As  to  the  Albia  mine,  I  find  that  the  evidence  estal)lishes  no  claim 
which  should  be  allowed  in  favor  of  the  contestant,  unless  it  be  the  vote* 
of  Lucius  Bell  and  John  Walker.  As  to  those  votes  the  evidence  is  not 
conipetent,  and  contestant  in  his  brief,  p.  5,  so  concedes.  The  same 
class  of  evidence  will  support  several  more  of  the  individual  claims  made 
by  contestee,  alluded  to,  than  I  have  allowed  above,  and  if  competent 
they  should  be  allowed  him.  The  majority  report  adopts  a  rule  of  evi- 
dence in  one  case  different  frq|Q  what  it  does  in  the  other.  I  reject  the 
two  said  votes,  and  follow  the  same  rule  of  evidence  in  other  cases. 

2.  As  to  the  voters  from  the  Munchichinock  Mine  : 

The  claim  is  that  the  following  names  appear  on  the  poll-list,  and  that 
they  belong  to  and  represent  persons  who  voted  for  contestee,  but  who 
went  to  Iowa  either  on  May  15,  1880,  or  later : 

Des  Moines  Township — 

Jesse  Carroll is  No . .     31 

Earnest  V.  Linsey  ((see  Rec,  99) ! "  "  ..     4ft 

James  S.  Martiu  (see  Rec,  99) "  "  ..     47 

George  W.  Lewis  (see Rec,  99) "  "  ..     48 

Heury  Lewis  (see  Rec,  99) "  "  ..184 

Charles  Garrison  (see  Rec.,  99) "  "  ..   18S 

(Rec.,  98  and  100,  &c.) 

In  Harrison  Township — 

Nelson  Woodford is  No . .  214 

8ani  Winbush "    "  ..  21ft 

Randolph  Willis "    "  ..  232 

Linda  Robinson "    "  ..  235 

William  Garland 247 

John  Burks 255 

Sam  Moppi  n 258 

John  Clark 32() 

.Josiah  James 322 

James  B vers 323- 

Wm.  H.  Hues 325 

Spencer  James 328 

John  W.  Jackson 329 

James  Usher 333^ 

Andrew  Lewis 334 

D.  F.  Woodard 335- 

G.  W.  Randall 33ft 


266  DIGEST  OF  ELECTION  CASES. 

They  amount  to  twenty-three  in  number.  It  is  claimed  that  they  were 
all  illegal,  there  not  being  one  of  the  requisite  qualifications  of  a  resi- 
■dence  of  six  months  in  the  State  prior  to  the  day  of  election. 

This  presents  a  question  of  fact  purely  to  be  determined  under  rules  of 
law  and  upon  the  evidence  adduced.  I  find  that,  on  clear  and  virtually 
uncontested  evidence,  this  number  of  twenty-three  should  be  reduced 
s.t  the  outset  to  eighteen. 

The  name  of  "  Josiah  James"  appears  on  the  poll-list.  This  is  said 
to  be  Joseph  H.  James.  A  man  of  that  name  is  examined  (Rec,  i)p. 
•618,  625),  and  said  to  be  the  one,  and  he  swears  most  positively  that  he 
did  not  vote  at  all.  No  one  proves  that  he  did  vote.  His  name  is  not 
on  the  poll-lists,  unless  Josiah  James  applies  to  him,  and  it  cannot  be 
fiaid  that  he  and  Josiah  James  are  the  same  person  from  correspondence 
of  names.  Even  Foster  (Rec,  368),  who  was  present,  won't  swear  that 
he  voted. 

Contestant  himself  admits  what  istrue,  that  Major  Shumate  does  not 
fitate  when  Woodford,  Burke,  and  Woodard  went  to  Iowa  (Brief,  p.  7 ). 

I  find  no  other  evidence  which  does  jirove  or  tend  to  prove  when  tbey 
-went,  or  that  they  went  after  May  2.  Indeed,  as  to  Woodford,  Major 
Shumate  swears  in  effect  that  he  (Nelson  Woodford)  sent  back  money 
to  Virginia  whep  he  went  back  for  the  third  party  (Rec,  401). 

As  to  William  Garland,  Page  Irwin  says  there  were  two  persons  by 
that  name,  and  this  is  not  contradicted.  Hence  it  cannot  be  found 
which  one  Major  Shumate  refers  to  in  his  evidence,  or  which  one  voted 
<Rec,  p.  565). 

•  Page  Irwin  swears  (Rec,  p.  565)  that  Randolph  Willis  came  to  Iowa 
before  April  4,  1880 ;  was  there  before  himself,  and  he  came  on  that 
•date.  • 

Major  Shumate  only  testifies  as  to  Willis  that  he  did  not  come  in 
■either  of  the  first  three  parties,  without  statiug  or  showing  that  he 
knows  when  he  did  come. 

I  therefore  lay  out  of  the  claim  five  names  from  the  alleged  twenty- 
three  as  cases  where  the  evidence  requires  it. 

If  Hardin  White  is  intended  to  be  included,  instead  of  Nelson  Wood- 
ford, it  will  not  change  the  result. 

The  remaining  eighteen  must  be  divided  into  two  classes :  Seven  names 
are  claimed  to  apply  to  persons  alleged  to  have  come  in  the  lot  which  ar- 
rived May  15, 1880.  These  seven  are  Jesse  N.  Carroll,  Charles  Garrison, 
Oeo.  W.  Lewis,  Henry  Lewis,  Samuel  Moppiu,  James  S.  Martin,  and 
Linda  Robinson.  All  the  rest  are  claimed  to  have  come  after  May  15, 
1880.  Before  going  further,  however,  I  desire  to  lay  down  and  premise 
the  rule  which  should  govern  the  consideration  to  be  given  to  the  evi- 
■dence.  It  is  the  rule  which  prevails  in  all  election  cases,  that  all  votes 
■cast  are  presumed  to  be  legal.  That  presumption  is  fortified  and  rein- 
forced in  the  present  case  by  the  uncontested  proof,  that  all  of  the 
■colored  voters  were  challenged  at  the  polls,  and  each  one  took  the  oath 
and  swore,  after  due  warning  and  openly,  that  he  had  resided  in  Iowa  six 
months  before  the  election.  Contestant  must  o\erthrow  this  presump- 
tion, thus  reinforced  and  fortified,  and  this  by  evidence  which  is  com- 
petent, credible,  and  sufficient  in  quality  and  quantity  to  produce  con- 
viction. It  is  not  enough  to  mix  the  thing  up  or  to  create  a  doubt  al)out 
the  right  of  the  parties  in  question  to  vote.  The  evidence  should  be 
•such  as  to  show  a  certainty,  as  in  fact  it  is  necessary  to  prove  what 
would  be  sutficient  to  convict  some  eighteen  different  men  of  very  reck- 
less swearing  tantamount  to  direct  perjury.  Evidence  which  does  this 
should  be  above  suspicion  and  free  from  doubt.    Members  are  not  to  be 


COOK   VS.    CUTTS.  267 

<lei)rived  of  their  seats  at  tbrs  late  day  of  the  term  and  new  ones  ad- 
mitted on  the  testimony  of  one  man,  at  least  \vhen  his  evidence  is  dubi- 
ous and  much  shaken.     1  will  consider  the  classes  separately. 

IV. 

As  to  the  first  class,  it  must  be  conceded  that  upon  the  preponder- 
mw.e  of  proof  there  was  a  comi)any  of  negroes  which  arrived  in  Iowa  on 
the  loth  day  of  May,  I8S0,  composed  of  a  few  men,  not  over  ten  in  num- 
ber, and  probably  not  more  than  six  or  eight,  and  the  rest  being  women 
and  children,  largely  the  families  of  those  who  had  gone  before.  If  the 
result  depended  upon  that  fact  I  should  not  deem  it  necessary  to  ex- 
press any  dissenting  views. 

The  i>reponderauce  of  the  evi<lence  also  seems  to  prove  that  ])ersons 
bearing  the  names  given  in  the  said  first  class,  all  save  Samuel  Moppin, 
came  in  some  company  which  arrived  in  May,  either  the  1st  day  or  the 
15th  day.  The  only  evidence  I  find  as  to  him  comes  from  Maj.  Thomas 
Shumate  (Kec,  p.  325),  who  says:  ^'  He  came  with  the  third  party  (May 
15),  is  my  recollection;  either  that  or  the  fourth  party;  am  not  sure  whichP 

If  he  is  assumed  to  be  the  person  whose  name  appears  on  the  poll- 
list  as  "  Samuel  Mapjune"  (Eec,  p.  106,  iJs^o.  258),  I  think  the  claim,  as 
to  him  at  least,  is  not  established.  I  do  not  credit  the  statement  of  the 
witness,  indefinite  and  uncertain  as  it  is,  for  reasons  hereafter  given 
under  the  other  head.  Besides  this,  there  is  not  suflicient  evidence  to 
show  the  identity  of  "Samuel  Mappine,"  as  written  on  the  poll-list,  and 
^'  Samuel  Moppin,"  as  named  to  the  witness,  with  nothing  else  to  con- 
nect them,  especially  as  the  negroes  were  shown,  many  of  them,  to  have 
several  different  names.  Neither  is  there  any  evidence  as  to  how  the 
man  giving  that  name  voted,  unless  we  assume  that  all  the  colored  men 
voted  for  contestee,  which  is  not  allowable.  It  appears  that  there  were 
some  of  them  (twelve  or  fifteen,  more  or  less)  Greenbackers.  (Jones,  p. 
557-8;  Irwin,  p.  566.) 

As  to  the  other  six,  the  question  is  whether  they  came  May  1,  as  con- 
testee's  evidence  tends  to  prove,  or  May  15,  as  contestant  contends.  It 
is  not  necessary  to  determine  this,  as  the  result  in  my  view  does  not 
depend  on  it.  But  as  so  much  stress  is  laid  on  it  by  the  majority,  as 
though  it  did,  I  will  state  how  it  stands  and  leave  it  there. 

Four  of  the  number,  viz,  George  W.  Lewis,  Henry  Lewis,  Jesse  Oar- 
roll,  and  James  Martin,  swear  with  great  positiveness  that  the v  arrived 
May  1,  1880  (Rec,  631,  600,  609). 

Paige  Irwiu,  Taylor  Jefferson,  William  T.  Howard,  Andrew  Turner, 
William  Southall,  G.  S.  Caul,  David  J.  Campbell,  and  others  swear  to 
the  same,  and  all  fix  the  dates  by  other  facts,  and  feel  perfectly  cer- 
tain. These  men  are  not  charged  with  illegal  voting,  and  are  disinter- 
ested (Rec,  i)p.  615,  565,  652,  654,  616  639,  626.) 

Now,  it  is  said  that  all  these  men  are  mistaken  and  even  perjured. 
The  date  of  arrival  of  the  so  called  third  lot  was  originally  fixed  by 
Major  Shumate  as  near  the  last  of  May.  He  fixed  it  by  the  fact,  which 
he  swore  to,  that  he  gathered  the  crowd  when  the  Staunton  court  was 
in  session,  which  met  the  third  Monday  of  May,  and  that  the  next  i)rior 
crowd  was  the  last  of  April  (Record,  322-3) ;  that  it  took  three  weeks  to 
gather  up  and  get  the  crowd  together  in  Virginia,  and  about  four  days' 
travel  by  rail  between  Virginia  and  Iowa.  He  subsequently  finds,  as 
he  says,  a  letter  which  fixed  the  date  of  his  arrival  in  Iowa  on  May  15. 
(Record,  p.  302.)  A  railroad  conductor  swears  to  taking  a  company  (of 
colored  women  and  children  mostly)  May  15,  identifying  the  number  of 


268  DIGEST    OF    ELECTION    CASES. 

the  car  by  a  return  of  his.  If  the  letter  is  jjeiiuine,  and  the  return  of 
the  conductor  is  reliable,  this  is  potent  evidence  to  fix  the  fact  that  a 
company  did  arrive  May  15.  It  is  to  be  observed  that  the  jjenuineness 
of  the  letter  depends  wholly  upon  the  evidence  of  Major  Shumate. 
The  railroad  return  contains  nothing  but  a  date  and  the  number  or 
description  of  a  railroad  coach  used  on  May  15.  Other  agents  and  the 
conductor  supply  only  that  there  was  in  it  negroes  consisting  mostly  of 
women  and  children  (Rec,  p.  433-4). 

There  is  a  serious  conflict  of  testimony,  unless  there  was  another  lot 
of  colored  persons  between  April  4,  1880,  and  May  15.  There  is  no 
positive  testimony  that  there  was.  But  that  alone  would  serve  to  rec- 
oncile much  of  the  conflicting  evidence.  It  may  be  safer  to  infer  as 
probable  that  there  was  another  than  to  find  that  twenty-three  men 
swore  falsely  when  they  took  the  oath  at  the  polls  after  full  warning, 
that  they  had  been  residing  in  Iowa  siz  months,  and  that  four  of  them 
repeated  that  falsehood  when  testifying  in  this  case,  and  that  Page 
Irwin,  Taylor  Jefl'ersou,  William  T.  Howard,  Andrew  Turner,  William 
Southal,  G.  S.  Carl,  and  David  J.  Campbell,  disinterested  persons,  having 
the  means  of  knowing  and  good  reasons  to  note  the  event  (as  they  say 
they  did),  also  swear  falsely,  or  are  mistaken. 

The  pay-roll  for  May,  1880,  shows  that  Mary  Irvin,  Julia  Bess,  Annie 
Carter,  Grace  Maupin,  Mary  Bates,  Minnie  Garrison,  and  Mary  Itobin- 
son,  all  of  whom  confessedly  came  with  what  is  called  the  May  crowd, 
worked  and  were  paid  and  allowed  for  twenty-four  days'  work  in  May,  and 
this  is  entirely  inconsistent  with  the  alleged  coming  on  May  15.  Some 
one,  not  known,  has  written  a  memorandum  in  i)encil  against  their 
names,  that  this  is  an  error.  Was  not  so  printed  in  the  record,  and  the 
inference  is  that  some  one  since  then  has  inadvertently  made  this  pencil 
memorandum  by  way  of  comment  on  the  margin.  The  original  entries 
are  too  formal  and  too  particular  to  raise  any  probability  of  error  origi- 
nally, and  if  the  pay-roll  is  evidence  and  reliable,  it  seems  to  be  very 
significant  as  entirely  inconsistent  with  the  claim  that  the  crowd  in 
which  these  persons  came  arrived  as  late  as  the  fifteenth  day  of  May. 

The  pay-roll  for  April  is  not  produced  and  is  not  before  the  com- 
mittee. If  it  were  it  is  possible  that  the  mystery  might  be  cle-ared  up. 
It  is  true  that  some  of  the  names  of  the  persons  in  question  aj)pear  on 
the  May  pay-roll.  The  days'  work  do  not  appear  save  in  oue  instance. 
The  men  are  allowed  job  or  piece  work  only.  But  the  evidence  is 
(Rec,  p.  113-9)  that  the  pay-rolls  did  not  contain  all  the  names  or  all 
the  work  done.  Men  worked  outside  of  the  mines,  and  some  worked 
for  other  parties  than  the  company.  Witnesses  swear  to  remaining 
some  time  without  work  and  to  being  engaged  in  other  things.  Up  to 
what  day  the  pay-rolls  run  or  were  made  up  don't  appear  satisfactorily 
(Rec,  p.  113-9).  Strictly  speaking  the  pay-rolls  are  not  competent  evi- 
dence. 

There  is  another  significant  fact.  It  appears  that  Major  Shumate  was 
in  Iowa  till  the  4th  or  5th  of  May.  Dr.  Witherill  swears  to  meeting  him 
on  the  4th  or  5th,  when  he  said  he  was  going  to  Virginia  for  more  men. 
He  himself  swears  that  he  left  the  3d  day  of  May.  Allowing  that  he 
got  to  Virgiuia  the  6th  and  started  back  the  12th^  this  would  give  him 
but  six  days,  one  of  them  Sunday,  in  which  to  gather  and  get  aboard 
the  train  a  company  of  negroes,  women  and  children,  whereas  he  had 
sworn  before  that  it  took  three  weeks  to  do  it.  There  had  been  an  interval 
of  about  six  weeks  between  what  he  calls  the  second  lot  and  the  May 
crowd,  to  wit,  from  April  3  to  May  15.  During  that  period  there  had 
been  time  for  an  intervening  company.    He  has  put  in  what  purport  to 


r 


COOK   VS    CUTTS.  269 

be  the  letters  which  he  wrote  to  liis  wife  from  Iowa,  iu  April,  aud  the 
last  one',  as  per  the  wrapper,  was  mailed  the  17th  of  April.  This  would 
give  him  thirteen  days  to  go  and  get  au  intervening  lot,  more  than  he 
says  he  took  for  the  May  crowd,  as  called  by  him.  He  speaks  of  having 
a  letter  of  April  26,  but  it  was  not  shown  or  put  in  evidence,  and  that 
date  as  printed  must  be  an  error,  as  he  dou't  annex  letter  or  cover. 
He  for  some  reason  withholds  and  does  not  show  the  letters  writ- 
ten after  April  4,  saying  they  relate  to  private  matters.  Had  he  shown 
them,  so  as  to  make  that  fact  manifest,  it  would  have  been  more  sat- 
isfactory. He  had  sworn  that  the  interval  between  the  second  and 
the  third  lot  was  the  shortest  of  them  all,  and  to  being  in  Virginia  wheu 
the  court  was  in  session,  as  that  was  a  good  time  to  collect  negroes.  He 
may  be  right  about  this,  after  all,  and  the  third  Monday  of  April  may 
have  been  the  term  of  the  court  which  he  had  iu  mind.  Even  after  he 
had  found  the  letter  of  his  wife,  he  was  not  willing  to  admit  and  say 
positively  that  he  was  mistaken  about  what  he  had  said  in  relation  to 
being  at  Staunton  one  of  the  times  when  the  court  sat  (Rec,  p.  402). 
There  seemed  to  be  lingering  in  his  mind  even  then  an  impression  that 
he  was  there  at  court  time.  April  was  the  only  month  in  which  it  could 
have  been  so  if  at  all.  If  this  was  so  the  fact  would  reconcile  the  exi- 
dence  on  thim  point  largely. 

It  is  clear  that  all  who  went  Mav  15  were  mostlv  women  and  children 
(Eec,  pp.  430-40). 

It  may  be  that  there  was  a  delay  in  getting  so  many  women  and  chil- 
dren, and  that  the  men  and  some  of  the  women  and  children  went  on 
before  in  an  earlier  train. 

Nothing  else  as  an  assumption  will  relieve  Major  Shumate  from  his 
l)retense  that  he  could  start  froju  Iowa  May  4,  go  and  return  by  May  15. 

E.  D.  Young  (Rec,  437),  who  had  charge  of  the  conductors,  says : 

Int.  4.  Did  a  freight  train,  with  a  passenger  coach  attached  containing  colored  peo- 
ple, run  from  Marshalltown  sonth  on  the  1st  day  of  May,  1880? 

(Objected  to,  the  same  as  to  interrogatory  2.) 

A.  I  could  not  say ;  I  am  almost  positive  there  was  not. 

Int.  5.  Do  you  recollect  of  a  lot  of  colored  people  being  carried  on  a  freight  train, 
with  passenger  coach  attached,  some  time  in  jklay,  18d0 f 

(Objected  to,  the  same  as  to  interrogatory  2.) 

A.  i  do. 

lut.  6.  Will  you  please  state  what  date  that  was,  and  whether  it  was  the  Ist  day 
of  May,  1860,  or  later. 

(Objected  to,  the  same  as  to  interrogatory  2.) 

A.  We  might  have  had  two  lots  of  colored  people  iu.  The  one  that  I  remember  of 
was  about  the  middle  of  May. 

Int.  7.  Do  YOU  recollect  of  any  going  south  from  Marshalltown  on  the  Ist  day  of 
May,  1880? 

(Objected  to,  the  same  as  to  interrogatory  2.) 

A    Xo ;  I  do  not.  . 

Int.  8.  What  proportion  of  the  crowd  that  you  remember  as  going  down  about  the 
middle  of  May  was  composed  of  women  ? 

(Objected  to,  the  same  as  to  interrogatory  2.) 

A.  I  have  no  means  of  knowing. 

The  long  interval,  from  Xpril  3  to  May  15,  between  those  two  lots  is 
best  explained  by  this  supposition.  If  the  May  lot  was  divided  that 
serves  to  explain  why  the  draft  drawn  by  Shumate,  on  May  12,  1S80, 
was  onlj-  $4(30,  when  the  fare  for  sixty  persons  at  $12  each  (the  price 
sworn  to)  would  be  $720.     Otherwise  this  fact  is  unexplained. 

All  Ihat  can  be  said  is  that  there  is  too  much  doubt  as  to  what  should 
be  called  the  May  crowd,  whether  it  was  on  or  just  before  May  1,  or 
May  15,  or  whether  there  was  one  on  both  days.  I  have  a  right  to 
assume  any  reasonable  hyj)othesis  which  will  harmonize  the  evidence, 
and  it  is  probable  there  were  two  lots  in  May. 


270  DIGEST  OF  ELECTION  CASES. 

Much  Stress  is  attempted  to  be  laid  on  tbie  fact  that  some  of  the 
witnesses  speak  of  the  "May  crowd."  The  word  is  rather  assumed 
by  the  questioner,  and  became  a  sort  of  designating  term  generally. 
The  witnesses  of  contestee  speak  of  one  crowd  and  those  of  contest- 
ant another  when  the  "May  crowd"  is  spoken  of. 

It  is  true  that  Mr.  Foster  and  his  wife,  colored,  swear  that  the  May 
crowd  came  May  15,  and  that  she  came  in  the  latter.  She  first  swears 
in  the  Record  (p.  507)  that  she  left  March  11.  The  examiner  goes  on 
and  assumes  that  she  said  May  15,  and  she  then  adopts  that.  Mr. 
Foster  admitted  that  he  was  to  have  $200  from  Mr.  Cook,  and  he  was- 
evidently  swearing  under  a  belief  that  that  was  so.  His  wife  comes  up 
to  join  and  help  him.  Shall  they  be  believed  while  the  evidence  of  all 
the  other  colored  people  is  scouted  as  untrue  and  perjured?  It  seems^ 
with  some  people  to  make  a  difference  on  which  side  colored  witnesses^ 
swear,  whether  they  are  considered  credible  or  not. 

William  Howard  says  he  and  George  Lewis,  Henry  Lewis,  James  Mar- 
tin, Jesse  Carroll,  ("harles  Garrison,  and  James  Carey  were  of  the  May 
crowd.    (Eec,  589.) 

Jones  says,  "  George  W.  Lewis  and  Jesse  Carroll  came  in  the  May 
party;  don't  remember  the  others."    (Eec,  559,  middle.) 

James  Martin  himself  says,  "I  came  in  the  May  crowd"  (Eec,  509,, 
int.  9),  and  that  George  W.  Lewis  and  Carroll  were  in  the  same  crowd ; 
don't  remember  the  names  of  the  others.     (Eec,  609.) 

George  W.  Lewis  himself  says,  "I  came  in  the  May  crowd,  as  it  is 
commonly  called,"  and  remembers  William  Howard,  Henry  Lewis,  and 
Linza  Eobinson.     (Eec,  631-^,  ints.  3  and  26.) 

Andrew  Turner  also  says  he  came  in  May  crowd.     (Eec,  653.) 

This  may  be  all  so,  and  yet  the  "May  crowd"  referred  to  be  that 
which  arrived  May  1.  The  contestant  is  ready  to  take  the  facts  as 
sworn  to  by  contestee's  witnesses  when  they  say  "May  crowd,"  because 
he  likes  that  much.  Yet  he  rejects  all  the  rest  if  that  don't  suit  him, 
and  says  it  is  perjured  testimony. 

It  is  not  necessary  to  examine  the  evidence  as  to  how  the  persons 
named  voted.  Four  of  them  have  declined  to  answer,  as  they  had  a 
right  to  do,  and  as  did  others,  the  legality  of  whose  votes  was  not  in 
question.  No  inference  is  to  be  made  against  their  truthfulness  on  that 
account.  All  the  colored  men  exercised  their  legal  privilege  only  in  de- 
clining to  answer.  Circumstantial  evidence  is  competent  to  prove  how 
they  voted.  It  is  quite  probable  that  most  of  the  colored  persons  voted 
the  Eepublican  ticket,  but  we  cannot  assume  that  from  the  single  fact  of 
color.  There  were  some  Greenbackers  among  them.  It  is  not  definitely 
proved  for  whom  all  of  them,  in  fact,  voted.  The  circumstantial  evi- 
dence is  quite  strong.  The  only  difficulty  is,  it  don't  reach  the  particu- 
lar individuals  in  question  to  any  great  extent. 

V. 

I  proceed  to  the  second  class  of  alleged  illegal  voters  named.  What 
is  the  evidence  adduced  ?  Is  it  credible  ?  Is  it  reliable  ?  Is  it  definite 
and  certain?  Is  it  plenary  in  quantity  and  quality,  so  as  to  work  and 
produce  conviction  and  establish  the  claim  predicated,  as  against  the 
strong  presumptions  existing,  and  the  oaths  of  the  electors  at  tl^  polls  ? 

It  all  comes  from  one  witness  (Shumate). 

There  are  no  pay-rolls  which  relate  to  them,  and  in  evidence.  The 
roster  furnishes  no  competent  evidence,  at  least  none  of  the  slightest 
weight.    Major  Shumate  referred  to  it  in  his  cross-examination,  and  is 


COOK  VS.   CUTTS.  271 

compelled  to  confess  that  he  cannot  fix  by  it  the  dates  when  the  mea 
came,  unless  it  be  by  association.  He  was  the  only  witness  produced 
whose  memory  could  be  aided  by  the  roster,  and  who  knew  anything; 
about  it,  and  he  has  not  undertaken  to  do  what  is  required  by  associa- 
tion even.  Mr.  Thompson  has  demonstrated  what  is  otherwise  appar- 
ent, that  the  roster  shows  nothing  which  can  be  relied  upon  to  settle- 
the  question  in  dispute.  If  it  does  I  do  not  regard  it  as  competent  evi- 
dence. Xot  being  kept  by  the  witness  it  could  not  legitimately  serve 
to  refresh  his  recollection  even. 

If  there  is  any  evidence,  therefore,  on  this  second  cla^s  except  that 
of  Major  Shumate,  I  have  been  unable  to  find  it.  No  one  has  pointed 
it  out  either  in  argument  or  the  briefs.  The  majority  report  refers  to 
none.  Shall  Major  Shumate  be  believed,  and  has  his  evidence  weight 
enough  to  overcome  the  said  presumptions!  We  must  take  him  as  he 
appears  on  the  record  evidence. 

Assertions  and  counter  assertions  and  denials  are  easy.  I  will  go  into- 
details,  and  give  reasons  for  my  conclusions.  Before  doing  that,  how- 
ever, I  will  divert  and  make  some  general  observations,  which  may  as- 
well  couie  in  here  as  anywhere.       * 

It  is  not  the  fault  of  the  House  or  the  Election  Committee  that 
the  determination  of  the  case  has  been  delaj-ed  so  long.  Contest- 
ant's case  was  not  ready  to  be  heard  when  this  Congress  met.  The^ 
record  then  showed  no  case,  and  he  applied  and  got  leave  to  take 
more  evidence,  and  that  was  not  taken  till  very  late  last  summer,  so 
that  the  case  could  not  be  taken  up  and  considered  until  the  present 
session.  The  record  evidence  is  voluminous,  conflicting,  complicated^ 
and  difficult  of  solution,  and  no  conclusion  has  been  reached  until  now.. 
Contestant  is  claimed,  upon  the  contention  of  the  contestee  (with  some 
plausibility,  at  least,  I  must  confess),  to  have  obtained  leave  to  take  fur- 
therevidence,  upon  groundsstated  in  affidavits,  which  prove  to  have  been 
rather  questionable.  And  the  committee  granted  leave  in  this  case  in  the 
exercise  of  a  liberality  which  was  not  practiced  in  two  other  cases  where 
a  similar  application  was  made.  But  I  do  not  propose  to  pass  upon 
these  points,  preferring  to  pass  over  the  personal  attacks  which  have 
been  made  with  some  acrimony  by  each  party  upon  the  other.  On  the 
one  side  there  is  a  charge  of  making  false  affidavits  to  get  further  time, 
and  some  evidence  offered  as  to  the  corrupt  use  of  money  in  obtaining 
testimony ;  and  on  the  other,  a  charge  of  sharp  practice,  and  even  of 
virtual  stealing,  in  getting  possession  of  and  withholding  the  roster 
already  alluded  to.  Xot  considering  the  parties  to  be  on  trial,  I  have 
endeavored  to  dismiss  these  charges  from  my  mind,  except  so  far  as 
they  necessarily  affect,  as  they  do  somewhat,  the  other  evidence  in  the 
case.  Had  the  roster  not  been  ultimately  produced,  as  was  promised 
by  contestee  early,  it  would  have  been  subject  to  all  reasonable  infer-" 
ences  adverse  to  the  contestee.  But  it  was  produced  as  promised,  and 
then  contestant  declined  to  take  and  put  it  in  evidence  on  the  records 
He  seemed  to  want  it  very  much,  if  he  could  not  get  it,  and  dealt  in 
severe  accusations  because  he  was  denied  it  at  once,  although  it  was 
incompetent  evidence  in  and  of  itself  if  ijroduced.  When  it  was  pro- 
duced he  did  not  seem  to  want  it,  and  did  not  use  it.  It  was  said  to  be 
desired  to  aid  Major  Shumate  in  refreshing  his  recollection  in  order  to- 
fix  and  determine  dates  and  the  lot  of  negroes  in  which  the  persons  in 
disi)ute  went  to  Iowa.  Contestee  says  he  distrusted  the  witness  knew 
that  the  roster,  not  being  kept  by  him,  was  not  competent  either  to 

I  refresh  his  recollection  or  otherwise  j  and  he  did  not  mean  to  let  him 


272  DIGEST  OF  ELECTION  CASES. 

have  it  in  the  first  place  to  aid  biiu  iu  constructing  a  false  story,  and 
promised  to  produce  it  after  contestant's  evidence  was  in,  and  did  do  so. 

After  witness  had  testified  for  contestant  the  roster  was  shown  him, 
and  all  needed  help  by  it  furnished,  but  he  was  constrained  to  admit 
that  the  roster  did  not  do  what  he  supposed  it  did,  and  that  he  could 
only  use  it  to  fix  things  by  argument  or  association  based  upon  it.  It 
was  of  so  little  use  in  this  regard,  as  it  proved,  that  the  matter  was 
dropped  by  the  witness  and  contestant,  although  the  question  of  tiuie 
was  waived  by  contestee.  The  contest  in  regard  to  the  roster  was  re- 
opened in  the  argument  before  the  committee,  but  was  cut  short  upon 
suggestion  made  that  possibly  there  was  no  objection  to  its  being  put 
in  evidence  then,  and  thereupon  contestee  said  he  did  not  object  to  it, 
but  consented  that  it  might  be  so  far  as  competent  evidence,  and  it  was 
put  in  evidence  subject  to  that  objection  alone.  This  is  all  that  needs 
to  be  said  on  that  point. 

What  is  Major  Shumate's  evidence  in  its  fall  length  and  breadth,  as 
bearing  upon  the  identity  and  residences  of  the  voters  in  question  in 
the  second  class  named  ?    I  give  it  in  the  language  of  the  record : 

1.  Int.  Cau  you  tell  me  from  memory  whether  James  Usher  came  iuto  the  State  be- 
fore or  after  May,  1880? — A.  James  Usher  did  not  come  either  with  the  first,  second, 
or  even  third  lot ;  he  came  with  the  fourth  party. 

2.  Int.  How  about  James  Byers  ? — A.  He  did  not  come  with  the  first,  second,  third, 
or  fourth  party  ;  he  came  with  the  fifth  party. 

3.  Int.  How  about  John  Clark  t — A.  John  Clark  did  not  come  with  the  first,  second, 
or  third  party. 

Int.  How  about  Jesse  X.  Carroll? — A.  I  am  not  sure  whether  Jesse  came  with 
the  second  or  third  party;  my  impression  is  he  came  with  the  third  party. 

4.  Int.  How  about  WHliam  Garland? — A.  He  did  not  come  iu  either  first,  second, 
or  third  party  ;  he  came  in  the  fourth  party. 

Int.  How  about  Brooks  Harris  ? — A    He  came  iu  the  first  party. 

Int.  How  about  Charles  Garrison? — A.  I  am  not  sure  whether  became  in  the  third 
or  fourth  party ;  my  impression  is  he  came  in  the  fourth  party,    v 

Int.  Are  you  certain  he  came  in  neither  the  first  nor  second  party? — A.  Yes,  sir;  I 
know  that. 

.5.  Int.  How  about  William  H.  Hues  ? — A.  He  came  there  with  the  fifth  or  sixth 
party ;  he  is  a  man  that  I  have  known  all  my  life,  nearly. 

6.  Int.  How  about  Spencer  James  ? — A.  Spencer  James  came  with  the  fourth  or 
fifth  party ;  he  is  a  man  that  has  worked  for  me,  on  and  oft',  for  several  years  in  Vir- 
ginia. 

Int.  When  did  John  W.  Jackson  come  to  Iowa  ? — A.  One  Johnny  Jackson — I  don't 
know  about  the  W.  being  in  his  name — he  is  the  only  John  Jackson  I  know  of;  he 
was  one  of  the  colored  men ;  he  came  with  Usher  in  the  fourth  party  iu  July,  18s0. 

Int.  How  about  Jasper  Kinney  ? — A.  He  came  in  the  second  party. 

Int.  How  about  Christopher  Lewis  ? — A.  He  came  in  the  second  party. 

Int.  How  about  Andrew  Lewis? — A.  Andrew  Lewis  did  not  come  in  any  of  the 
three  first  parlies ;  he  came  to  the  mines  in  October,  1880. 

Int.  How  about  Ernest  Z.  Linsey? — A.  Charles  Linsey  came  in  second  party: 
Ernest  Linsey  came  in  fourth  party. 

Int.  How  about  George  N.  Lewis  and  Henry  Lewis? — A.  I  now  remember  that 
Charles  Garrison  and  the  two  Lewises,  Greorge  W.  and  Henry,  came  in  the  third  party 
in  May. 

Int.  When  did  Samuel  Moppin  come  ? — A.  He  came  with  third  party,  is  my  recol- 
lection; either  that  or  the  fourth  party  ;  am  not  sure  which. 

Int.  When  did  James  S.  Martin  come?— A.  He  came  with  third  party. 

Int.  When  did  Annias  Randolph  come  ? — A.  He  came  with  first  party. 

Int.  When  did  Linza  Robinson  come? — A.  He  came  with  third  party,  is  my  recol- 
lection. 

Int.  When  did  G.  W.  Randel  come? — A.  I  am  not  positive  when  he  came,  whether 
•with  third  or  fourth  party;  he  did  not  come  with  the  third;  it  must  have  been  later. 

Int.  When  did  Edward  Willis  come?— A.  He  came  iu  1881.  Sam.  Willis  camo  with 
second  party. 

Int.  How  about  Hardin  White?— A.  Hedidnot  come  with  the  first,  second,  or  third 
parties;  he  must  have  come  later. 

Int.  How  about  Sam.  Winbnsh  ? — A.  He  did  not  come  with  either  of  the  first  three 
parties. 


COOK  VS.   CUTTS.  273 

Int.  Ho-w  about  Randolph  Willis? — A.  He  did  not  come  with  either  of  the  first 

three  parties?    (Rec,  p.  422-3.) 

When  recalled  at  a  later  date,  the  following  further  questions  are  put 
and  answered  (Rec,  p.  394-5) : 

Int.  The  other  day  in  testifying  you  were  not  quite  sure  in  regard  to  Jesse  N.  Car- 
roll, but  thought  he  cauie  with  the  third  party.  What  do  you  now  remember  as  to 
that  ? — A.  My  recollection  is  that  he  did  corae  with  the  third  party,  from  circumstances. 

Int.  Is  there  any  other  person  that  you  now  remember  as  arriving  differently  from 
what  you  then  stated  ? — A.  I  can't  say ;  I  think  I  then  stated  that  I  was  not  positive 
which  trip  Samuel  Moppin  came  out  in  ;  I  recollect  now  that  he  came  in  the  third 
party. 

Int.  When  did  the  fourth  party  arrive  t — A.  The  night  of  the  Ist  or  the  morning  of 
the  2d  of  July,  1880. 

Int.  When  did  Joseph  James  arrive? — A.  I  brought  a  party  in  September  and  one 
in  October,  1880,  and  my  impression  is  he  came  iu  September ;  either  that  or  October. 
1880. 

Int.  When  did  John  W.  Jackson  arrive  ? — A.  H.e  came  in  the  July  party,  1880. 

Int.  How  old  was  he  in  1880? — A.  I  can't  say. 

As  I  do  not  feel  convinced  by  this  evidence  either  that  the  witness 
remembered  what  he  testified  to,  or  that  it  was  possible  for  him  to  re- 
member what  he  assumes  to  do,  or  that  this  furnishes  adequate  proof 
of  the  claims  set  up  by  contestant,  as  against  the  presumptions  and  the 
counter  evidence  already  adverted  to,  a  minute  statement  of  reasons 
may  be  proper,  in  the  shape  of  statement  and  argument. 
In  the  first  place  generally  it  is  to  be  observed  and  noted : 
1.  The  interrogator  took  specific  names  from  the  poll-lists  of  two  vot- 
ing precincts,  and  gave  the  name  as  there  found  to  the  witness  in  each 
question.  The  mode  adopted  was  suggestive  and  leading,  and  detracts 
very  much  from  the  value  of  the  evidence.  The  votes  cast  by  colored 
men  in  one  township  was  43,  and  in  the  other  about  60,  making  in  round 
numbers  about  100.  The  notice  of  contest  embra<?ed  all  the  colored  men 
by  name  found  on  the  poll-list  in  each  township,  as  a  blanket  charge  of 
illegality  applied  to  all  alike.  Xow,  if  the  interrogator  had  handed 
the  witness  a  list  of  those  names,  and  asked  him  and  had  him  state 
whether  he  could  remember  colored  persons  who  came  from  Virginia 
and  who  bore  those  names,  or  any  of  them,  and,  if  so,  specify  what 
ones  and  when  or  in  what  lots  they  came,  and  say  how  he  was  able  to 
remember  them,  giving  his  particular  reasons  therefor,  if  he  had  any; 
or  if  he  had  been  asked  the  more  general  question  embracing  all  the 
men  contained  in  the  six  several  lots,  and  he  had  answered  with  any 
reliable  certainty,  and  made  it  apppear  reasonable  that  he  could  re- 
member, and  did  remember,  both  the  names  and  the  persons  to  whom 
they  applied,  his  evidence  would  have  been  of  more  worth.  Instead  of 
that  course  of  proceeding  the  contestant  picked  out  the  names  he 
wanted  to  use,  gave  each  one  specifically  to  the  witness  in  a  single 
question,  without  asking  generally  if  he  knew  him  and  remembered  any- 
thing, and,  if  anything,  what,  about  him.  He  asked  him  substantially 
only  when  he  came  to  Iowa.  Under  the  facts  aud  circumstances  ap- 
pearing, and  hereinafter  adverted  to,  no  one  can  be  satisfied,  from  the 
way  in  which  the  questions  are  put  and  answered,  that  the  witness 
knew  the  persons  referred  to,  or  had  much,  if  any,  acquaintance  with 
them,  or  could  apply  the  names  to  particular  persons  clearly  called  to 
mind,  or  had  any  reason  why  he  could  single  out  a  few  persons  from 
the  hundreds  who  voted,  or  from  the  several  hundreds — say  300 — 
colored  men  whom  he  had  brought  from  Virginia  in  six  separate  and 
distinct  lots,  with  an  interval  of  a  month  or  thereabouts  between  them, 
and  that  about  two  years  before  the  time  when  he  testified  by  an  un. 
H.  Mis.  35 18 


274  DIGEST    OF    ELECTION    CASES, 

aided  memory.  For  aught  that  appears,  he  was  answering  after  being 
"coached,"  as  the  lawyers  say,  and  upon  information  and  belief  formed 
from  sources  other  than  from  memorj'  and  personal  knowledge.  Not 
being  able  to  get  the  roster  for  ^^ association^^  he  may  have  found  other- 
wise a  convenient  memory  for  the  contestant,  with  ill-feeling  caused  by 
the  non-i)roduction  of  the  roster.  Under  such  circumstances  an  unscru- 
pulous or  angered  witness  might  be  likely  to  take  his  dates  and  names^ 
&c.,  from  others,  if  they  were  not  in  his  memory. 

2.  Save  in  two  instances  (as  to  Mr.  Hues  and  Spencer  James)  it  does 
not  appear  that  the  witness  had  any  particular  personal  acquaintance 
with  the  men  named. 

3.  It  does  not  appear  as  to  any  of  them  that  he  had  any  reason  why 
he  could  single  them  out  of  the  whole  number  of  300  who  came,  or 
of  the  100  who  voted,  and  say  in  what  lot  they  came.  It  is  or  would  be 
a  very  suspicious  fact  if  he  coukl  not  do  the  same  as  to  all  or  each  lot 
and  appeared  to  be  able  to  do  it  only  as  to  the  very  persons  needed 
to  answer  contestant's  claim.  That  alone  would  serve  of  itself  to  so 
depreciate  the  value  of  his  evidence  as  to  destroy  the  effect  of  the  same. 

4.  The  fact  that  he  does  state  why  he  remembers  Mr.  Hues  and  Si)en- 
cer  James  leaves  it  to  be  reasonably  assumed  or  presumed  that  he  had 
no  particular  or  special  acquaintance  with  the  others. 

5.  It  is  to  be  observed  that  in  few  instances  alone  does  he  state  the 
date  or  lot  directly  or  absolutely  even  in  form  or  appearance.  And 
even  in  these,  no  one  can  tell  whether  he  remembers  the  fact  as  a 
matter  of  memory,  or  has  satisfied  his  own  mind  from  hearsay  or  in- 
formation obtained  by  inquiry  of  the  contestant  or  others.  In  some  in- 
stances he  states  by  impression,  and  rather  faintly.  In  other  instances 
he  does  it  argumentatively,  or  by  using  the  argument  of  exclusion, 
or  a  negative  process,  and  forming  a  deduction  and  then  stating  that 
as  his  conclusion  or  as  a  fact.  Even  when  he  is  recalled  subsequently, 
and  has  had  time  to  refresh  his  memory,  and  has  attempted  to  do  so  in 
other  matters  at  least,  he  states  as  to  Jesse  Carroll  with  more  positive- 
ness,  but  gives  no  reason  for  it,  and  presumably  had  none,  as  he  does 
not,  and  is  not  asked  to,  state  it.  I  can  conceive  of  none,  and  if  allowed 
to  conjecture,  or  disposed  to  assign  one  which  is  derogatory  to  the 
witnesF,  I  should  say  that  it  was  because  it  had  occurred  or  been  sug- 
gested to  him  that,  as  he  had  left  the  testimony  before  as  to  Jesse  Car- 
roll it  did  not  come  up  to  what  was  needed  to  answer  contestant's  pur- 
pose, and  it  was  therefore  made  more  direct  and  positive  in  answer. 

I  am  myself  impressed,  and  I  think  any  one  disposed  to  scrutinize  the 
evidence  and  get  a  good  reason  for  his  conclusion  must  likewise  be 
impressed,  with  the  suggestion  that  the  witness  undertook  to  do,  and  is 
claimed  to  have  done,  an  impossibility'^,  except  perhaps  in  two  indi- 
vidual instances  which  form  exceptions,  because  of  a  more  intimate  ac- 
quaintance and  for  special  reasons  given.  It  is  too  much  for  .any  one 
to  assume,  without  evidence  to  that  effect,  that  there  were  particular 
reasons  as  to  the  other  persons  comprehended  in  the  answers  given, 
especially  when  they  are  almost  exclusively  the  particular  men  needed 
for  contestant's  purpose.  In  this  view,  and  in  order  to  show  this  im- 
possibility, one  has  only  to  form  a  background  and  basis  of  facts  not 
disputed  in  front  of  or  on  which  the  witness  stood  when  he  thus  testified. 
I  stat«  or  restate  some  of  the  prominent  ones.  He  had  left  the  com- 
pany long  before  he  testified,  that  having  been  given  up,  and  had  gone 
into  other  business.  A  year  and  a  half,  more  or  less,  had  elapsed 
since  the  dates  in  question.  He  had  no  access  to  the  books  and  papers 
of  the  company,  had  no  lists,  books,  memoriinda,  or  other  papers,  or 


COOK   VS.   CUTTS.  275 

given  facts,  by  which  to  fix  the  dates  or  the  particular  lots  in  which 
the  men  came.  The  crowds  of  negroes  were  people  taken  and  gathered 
up  ill  diftereut  sections  of  Virginia,  were  taken  to  Iowa,  to  the  number  of 
400  or  500,  and  in  crowds,  6  in  number,  of  from  65  to  80  each,  distrib- 
uted through  seven  months,  at  intervals  of  about  a  month  or  more.  The 
witness,  a  white  person,  does  not  appear  to  have  had,  save  in  cases  of 
limited  exceptions,  any  more  acquaintance  with  them  than  such  as  would 
arise  from  the  general  facts  named.  He  had  little  to  do  with  them  at  the 
mines  after  they  arrived  except  to  locate  and  organize  them  for  work 
there,  hand  in  to  the  ofRcers  of  the  comi^any  which  employed  him  the 
lists  of  the  persons  brought,  with  an  account  of  his  expenditures  and 
expenses.  It  is  true  that  while  at  the  mines,  in  the  intervals  between 
the  trips,  he  may  have  seen  more  or  less  of  them ;  but  as  they  were  at 
work  in  the  mines,  and  he  did  not  attend  to  keeping  pay-rolls  or 
their  accounts,  or  paying  them  off,  his  familiarity  was  not  much  or  great. 
Some  of  them  had  several  different  names  by  which  they  went,  and  they 
were  largely  called  by  nicknames.  Very  rarely  probably  was  the  full 
name  sounded  in  the  witness's  ears.  If  the  witness  ever  wrote  them, 
it  don't  appear  to  have  been  done  only  when  he  made  out  the  lists  in 
Virginia  before,  and  when  he  took  the  persons  to  Iowa  with  one  ticket 
or  pass.  He  had  no  occasion  to  memorize  the  names,  in  any  consider- 
able number  of  idstances  at  least,  and  would  not  be  as  likely  to  do  so  if 
he  wrote  them  down  at  first  and  relied  on  the  lists. 

I  submit  for  the  consideration  of  the  House  whether  it  is  in  the  power 
of  human  memory  to  retain  and  be  able  to  give  accurately  what  the 
witness  has  claimed  to  be  able  to  state.  He  could  do  it  perhaps  in 
special  cases  and  for  specific  reasons  which  he  could  give.  I  would  not 
believe  any  man  if  he  said  he  could  do  it  until  I  had  put  him  to  the 
severest  test  and  found  it  to  be  so,  and  then  I  would  set  him  down  as 
an  anomaly,  a  prodigy,  and  should  want  to  know  what  his  system  was 
so  it  could  be  put  into  a  treatise  on  mnemonics. 

But  it  is  proved  beyond  doubt  that  the  witness  here  is  no  such  wonder 
or  prodigy,  but  quite  the  reverse.  The  cross-examiner  appreciated  this 
difiHculty  and  put  the  witness  to  the  test  sufficiently  to  accomplish  the 
purpose.  It  was  proved  beyond  doubt  that  the  "  May  crowd"  (of  May 
15)  had  at  best  not  more  than  ten  men  in  it,  the  rest  being  women  and 
children,  and  he  would  be  able  to  state  the  names  of  the  men  in  this 
lot,  if  any  one,  we  should  suppose.  But  he  fails  utterly,  and  shows 
what  I  have  already  urged  in  another  conoection,  that  he  required  that 
the  interrogator  should  give  the  name  first  in  the  question. 

Let  us  see  how  he  bore  the  test.  I  quote  from  the  record  of  his  evi- 
dence : 

Ist.  Then  you  can't  remember  now  how  many  men  came  with  you  on  that  third 
lot,  or  where  they  came  from  ?— A.  I  can't  remember  the  number  of  men,  but  I  now 
call  to  mind  now  some  who  did  come,  and  that  they  came  from  Staunton,  and  I  now 
recollect  further  that  I  had  quite  a  number  of  women  and  some  children,  and  I  recol- 
lect further  that  some  of  them  came  from  west  of  <6taunton.  I  can  call  some  of  the 
families  and  some  of  the  men  without  any  memorandum. 

Int.  There  were  only  about  ten  men  in  the  May  party,  were  there  7--A.  My  recol- 
lection is  that  there  Avas  a  smaller  number  of  men  on  that  occasion  than  either  of 
the  previous  trips  or  subsequent  one  that  year.    I  believe  there  were  less  than  twenty. 

Int.  Isn't  your  memory  good  enough  to  enable  you  to  get  nearer  the  exact  facts 
than  that  ?— A.  My  auswcr  is  that  I  am  giving  the  facts  to  the  best  of  my  memory, 
as  I  have  frequently  stated.     I  haven't  any  memoranda  to  aid  my  memory  whatever. 

The  third  lot  is  the  "  May  crowd,"  as  witness  says.  This  matter  is 
returned  to  again  (Kec,  p.  398),  and  he  finally  confesses  that  he  could 
not  tell  the  names  from  memory.    I  quote : 


276  DIGEST   OF    ELECTION   CASES. 

Int.  Did  you  bring  a  single  Charloitaeville  man  with  you  in  the  May  trip  ?— A.  I  can't 
call  to  viind  iihelher  I  did  or  not,  hut  if  I  had  the  roster,  or  any  other  list  of  the  names  of 
■the parties,  I  could.  i^  .    ^,     ,r  j»     * 

Int  DonH  youknotp,  outside  of  the  roster,  what  men  you  brought  i«  the  May  croud  T— A. 
If  I  heard  the  list  of  names  called  I  could  tell  perhaps.  The  roster  icas  the  on  ly  book  of  th« 
Consolidation  Coal  Company  that  I  ever  remembered  to  have  handled,  except  the  miners'  book. 

Now  let  us  turn  to  another  test  of  the  witness's  memory.  What  I 
shall  next  quote  in  considerable  detail  shown  not  only  a  very  defective 
memory,  but  a  very  loose  and  reckless  course  of  swearing  at  the  outset, 
^nd  all  through  a  very  weak  power  of  association,  as  he  terms  it,  not  to 
say  an  utter  falsity  of  statement.  It  is  to  be  observed  that  when  ^rst 
called  he  undertook  to  fix  the  dates  of  going  and  coming  for  and  with 
the  first  four  lots  in  the  line  of  contestant's  assumption  or  desire.  He 
was  then  with  an  unaided  memory,  and  proceeds  to  state  that  he  started 
for  the  second  lot  about  the  first  of  April ;  that  it  took  him  about  three 
weeks  to  gather  up  the  company  (Rec,  p.  322) ;  that  he  arrived  in  Iowa 
some  time  after  the  middle  of  April  with  the  second  lot;  that  he  went/or 
the  third  lot  after  a  shorter  interval  than  any  trip  lefore  or  after,  less 
than  two  iceeks  from  the  time  of  his  arrival  toith  the  second  lot ;  that  he 
_got  bacJc  to  Iowa  in  the  month  of  May,  remembers  that ;  that  he  could  not 
have  gathered  up  the  company  short  of  three  weeks  ;  usually  made  it  a  point 
to  strike  courts  at  Staunton  and  Charlottserille  ;  that  the  court  sat  at  Staun- 
ton the  4tth  Monday  of  May,  and  fixes  that  as  the  time  when  he  teas  at  Staun- 
ton getting  the  third  lot.     (Rec,  p.  322,  323.) 

Subsequently  it  turns  out,  and  he  swears  on  the  strength  of  two  let- 
ters written  by  him  to  his  wife,  that  he  arrived  with  second  lot  April  4, 
:and  that  he  arrived  with  the  third  lot  May  15.  He  fixes  this  latter  fact 
by  the  date  of  a  draft  also,  and  in  other  ways  hereafter  to  be  discussed. 
Now,  it  appears  by  this  that  his  memory,  not  only  as  to  dates  but  as 
to  distinct  facts,  was  utterly  unreliable.  It  is  proved  by  Dr.  With- 
erill,  and  conceded  in  contestant's  brief,  that  the  witness  started  from 
Iowa  May  4  or  5,  while  witness  cannot  exactly  tell,  but  says  it  was 
about  May  1.  If  so,  and  he  returned  May  15,  and  it  took  him  three 
weeks  to  gather  a  crowd  of  some  sixty  negroes,  women  and  children, 
and  four  or  five  days  to  travel  each  way,  it  is  difi&cult  to  see  how  he 
could  get  back  in  ten  days  from  the  time  when  he  started  from  Iowa, 
and  yet  he  swears  to  each  of  the  elements  which  lead  to  that  result, 
^nd  fixes  the  day  of  arrival  in  Iowa  as  May  15. 

The  cross-examiner  put  him  to  the  test,  and  showed  up  his  reckless- 
ness of  statement  and  his  grave  errors  and  mistakes  of  memory  most 
effectually.  He  did  not  meet  a  single  term  of  court  in  Charlottseville  or 
Staunton  when  he  went  for  either  of  the  first  three  lots,  unless  the  third  ar- 
rived May  1,  1880.     I  quote  : 

Int.  Have  you  any  recollection  that  you  certainly  hit  either  court  in  either  April 
■or  May.  And,  if  so,  state  particularly  which  court  and  in  which  month. — A.  My  im- 
pression is,  and  has  always  been,  that  I  did  not  miss  both  courts  at  either  trip ;  I  have 
DO  distinct  recollection  of  any  one. 

Int.  If  you  have  no  distinct  recollection  of  either  hitting  or  missing  either  of  those 
courts  in  April  or  May,  why  did  you  voluntarily  refer  to  the  courts  the  other  day, 
when  Mr.  Cook  was  asking  you  questions,  as  being  something  from  which  you  could, 
fix  date  and  times  f — A.  For  the  reason  that  I  have  explained  a  half  dozen  times,  that 
1  always  aimed  to  hit  one  or  the  other,  or  both  courts,  with  a  view  of  meeting  more 
people  on  that  day  than  any  other  day  in  the  month ;  that  1  usually  aimed  in  plan- 
ning my  trips  to  meet  either  one  of  those  courts  or  both. 

Int.  But  how  would  that  fact  help  your  memory  if  yon  don't  know  you  were  at 
either  court  f — A.  It  is  a  habit  and  custom  in  the  country  that  I  bring  these  people 
from  for  the  colore*!  men  living  in  the  country  to  come  to  courts  of  their  counties  when 
they  are  hunting  employment,  and  it  was  always  my  purpose  in  starting  from  here  to 
Virginia  to  strike  one  or  the  other  of  those  courts,  and  I  have  no  recollection  of  hav- 
ing missed  both  courts  in  any  trip;  my  impression  is  that  I  did  not  miss  both  courts 


COOK  VS.   CUTTS.  277 

on  either  trip ;  it  is  possible  that  I  may  be  mistaken  as  to  it  being  the  third  Monday, 
court  day  in  Staunton  :  it  may  be  on  the  fourth  Monday  ;  if  permitted  to  go  and  hunt> 
up  the  evidence,  I  think  that  I  can  establish  to  a  certainty  that  I  never  did  miss  both 
courts  on  either  trip. 

Int.  Do  you  feel  quite  positive  that  you  did  not  f  — A.  That  is  my  impression,  sir. 

Int.  Is  your  recollection  pretty  clear  on  that  point  T — A.  I  gave  it  as  my  impreft- 
sion. 

Int.  Then  tell  definitely  which  court  you  hit  in  April. — A.  I  can't  tell  positively. 

Int.  What  day  in  March  did  you  start  back  for  the  second  lot  t — A.  I  can't  tell  yovty 
sir. 

Int.  Give  the  date  as  nearly  ae  you  can. — A.  I  recollect  that  I  was  at  Muchachinock. 
ten  days  or  two  weeks  before  I  started  back  for  the  second  lot ;  I  go  by  circumstances- 
more  than  anything  else  ;  I  have  no  data  to  go  by. 

Int.  What  day  of  th«)  week  did  you  start  back,  and  was  it  not  on  Monday,  the22d 
day  of  March,  that  you  started  back  ? — A.  I  can't  state  positively  the  date,  but  think 
probably  it  was,  as  I  usually  started  early  in  the  week,  in  order  to  get  home  before 
Sunday.  * 

Int.  At  which  court  were  you  when  you  went  back  for  the  second  lot  T — A.  I  can't 
state  positively. 

Int.  Give  your  best  impression. — A.  I  am  not  positive  whether  on  that  trip  I  struck 
either  of  the  courts.  I  aimed  to  do  it,  and  usually  tried  to  strike  one  or  the  other,  and 
always  preferred  to  strike  the  Charlottesville  court;  I  have  a  letter  in  my  hand  post- 
marked March  15,  1880,  dated  at  Muchachinock,  written  on  March  the  14th,  1880. 

Int.  What  time  did  you  start  back  for  the  fourth  lot  ? — A.  I  can't  say  positively  ; 
I  can  tell  you  the  circumstances  by  which  I  can  fix  the  date  of  my  return  to  Mucha- 
chinock ;  we  got  there  the  day  before  they  celebrated  the  4th  of  July;  we  got  there 
on  the  2d. 

Int.  Give  the  date  when  you  left  for  the  fourth  lot,  as  nearly  as  yon  can. — A.  It  was- 
after  the  first  of  June,  and  very  early  in  June;  I  found  the  people  harvesting  in  the- 
Shenandoah  Valley,  and  I  recollect  further  that  it  was  an  unusually  early  hai'vest. 

Int.  When  did  you  start  back  for  the  third  lot ;  before  or  after  the  first  of  May  ? — 
A.  I  can't  be  jxjsitive  as  to  time ;  I  remember  one  thing,  of  having  eaten  strawberries 
at  Cincinnati,  Ohio. 

Int.  Give  your  best  opinion  as  to  when  you  started  for  the  third  lotr — A.  It  was 
the  latter  part  of  April  or  the  first  of  May,  1880.  I  can't  be  positive  as  to  exact  date 
unless  I  have  something  to  locate  by. 

Int.  Then  you  did  not  aim  to  reach  either  the  Staunton  or  Charlottesville  court  in 
April  ? — A.  My  recollection  is  general  about  that ;  I  aimed  to  strike  either  one  of 
those  courts  or  both,  with  a  view  to  meeting  more  men  from  their  homes. 

Int.  You  did  not  strike  either  court  in  May,  did  you  ? — A.  My  recollection  is  gen- 
eral about  that ;  I  always  aimed  to  strike  either  one  or  the  other  or  both.  If  I  have 
time  to  examine  letters  I  have  at  home  I  can  probably  tell  better. 

Int.  Are  you  able  to  say  whether  yon  did  or  did  not  start  as  early  as  the  17th  day 
of  March  ? — A.  I  can't  call  to  mind  any  circumstance  to  fix  the  date  at  all,  except  I 
don't  think  from  what  I  did  down  there  at  Muchachinock  that  I  did  start  that  early. 

Int.  Then,  according  to  that,  you  did  not  hit  the  March  Staunton  court  T — A.  I 
probably  did  not. 

Int.  Then  you  hit  none  of  the  courts  in  March  or  April,  and  not  more  than  one,  if 
any,  in  May  ? — A.  Well,  I  thi  nk  from  the  dates  that  have  been  given  me  to-night 
that  is  probably  the  fact. 

Int.  Then  those  courts  do  not  enable  you  to  fix  any  dates  at  all? — A.  Not  positively . 

Int.  Then  you  are  mistaken,  are  you  not,  when  you  said  you  thought  you  were  at 
the  Staunton  court  in  May  t — A.  I  am  not  positive  that  I  am  mistaken ;  it  is  probable 
that  I  was. 

Int.  You  were  mistaken,  were  you  not,  when  you  said  you  hit  the  Staunton  court 
in  April  ? — A.  My  answer  is  on  record  ;  twice  before  I  answered  that  I  thought  I  was, 
but  after  examining  dates  it  could  not  have  been  possible  to  have  been  here. 

Int.  You  are  mistaken  in  saying  that  you  thought  you  were  at  the  Charlotte8vilIe> 
court,  are  you  not  ? — A.  Yes,  sir ;  I  could  not  have  been  there  on  the  4th. 

Int.  You  are  mistaken  in  saying  that  you  thought  you  were  at  the  Staunton  court 
in  March,  are  you  not  ? — A.  I  don't  know  that  I  am ;  I  had  no  date  to  go  by  ;  I  am 
not  positive  that  I  was  there  at  all,  as  I  have  answered  before.  I  had  an  impression 
that  I  never  missed  both  courts  any  trip. 

Int.  You  are  mistaken  in  saying  that  the  shortest  interval  was  between  the  second 
and  third  parties  instead  of  the  first  and  second  f — A.  Yes,  sir ;  I  made  that  statement 
in  beginning  my  testimony  this  morning. 

Int.  Yon  are  mistaken  in  saying  that  you  got  here  with  the  second  lot  after  the 
middle  of  April? — A.  Yes,  sir;  and  I  made  that  statement  on  my  direct  examination 
this  afternoon.  I  have  repeatedly  said  during  my  examination  that  I  had  to  fix  all 
the  dates  more  from  circumstances  than  anything  else.     With  th*e  exception  of  the 


278  DIGEST    OF    ELECTION   CASES. 

two  letters  I  have  had  no  memorauda  or  data  to  go  by.  I  can  tell,  if  you  desire  it, 
how  I  fixed  the  arrival  of  the  first  and  fourth  lots. 

Int.  You  are  mistaken,  are  you  not,  when  you  said  you  left  Virginia  with  the  third 
lot  after  the  Staunton  court  ?— A.  Yes,  sir;  I  corrected  that  in  my  direct  examination 
this  morning. 

Int.  Since  it  is  evident  that  you  have  made  so  mauy  mistakes  in  your  testimony,  is 
it  quite  likely  that  you  have  made  other  mistakes  that  have  not  been  mentioned? — 
A.  It  is  quite  possible,  especially  as  to  dates. 

Int.  What  ones  of  the  colored  men  do  you  say  sent  back  money  by  you  or  requested 
you  to  do  errands  for  them  when  you  went  back  for  the  third  lot  ?— A.  I  can  call  to 
inind  two.  Nelson  Woodford,  from  Charlottesville  ;  Hilliary  Scott,  another.  It  is 
almost  invariably  the  case  that  I  had  money  and  messages  to  take  back  to  their 
friends,  and  to  attend  to  little  business  matters  for  some  of  them. 

Int.  If  you  got  here  the  4th  of  April,  then  you  must  have  missed  the  Charlottesville 
court,  which  was  the  first  Monday  in  April  ?— A.  Yes  ;  theu  if  I  am  mistaken  about 
the  date  of  holding  court,  theu  I  must  have  struck  the  Staunton  court  in  March. 

Int.  Then  if  you  hit  tlie  Staunton  court  in  April,  you  had  to  be  there  by  either  the 
19th  or  26th  of  that  month,  did  you  not?— A.  My  recollection  is  that  I  was  not  there 
at  either  of  those  dates ;  I  have  a  letter  here  showing  that  I  was  at  Muchachiuock  on 
the  26th  of  April.     I  could  not  have  been  there  then. 

Int.  Then  if  is  not  true,  is  it,  that  you  hit  either  court  in  the  month  of  April  ? — A. 
From  the  dates  before  me  in  this  calendar  I  did  miss  both  courts,  because  I  was  here 
on  the  4th  and  26th,  inclusive,  yet  I  have  no  recollection  of  having  missed  both. 

The  witness  leaves  for  several  hours  at  this  poiut,  and  on  returning 
the  examination  proceeds : 

Int.  I  believe  you  said  you  missed  both  of  the  April  courts  in  Virginia  ? — A.  Yes, 
sir ;  after  the  dates  before  me,  I  know  it  was  inipo.ssible  for  me  to  be  at  either  of  them. 
The  whole  of  my  testimony-in-chief  and  cross-examination  given  the  other  day  and 
to-day  have  been  entirely  without  memorauda  or  data,  excei)t  the  two  letters  that  I 
presented  to-day ;  I  didn't  know  the  existence  of  them  until  after  1  had  testified  the 
other  day. 

Int.  You  were  quite  sure  you  hit  one  court  or  the  other  in  April  ? — A.  I  was  until 
confronted  with  the  dates  in  Api"il,  in  the  letters  and  the  almanac. 

Int.  You  at  first  were  quite  sure  that  you  had  hit  the  Staunton  court  in  May  ? — A. 
I  was  quite  sure  when  I  testified  that  I  never  missed  hitting  one  or  the  other  courts 
on  either  trip  to  Virginia.  I  also  was  quite  sure  that  I  hit  one  or  the  other  court  in 
May. 

Int.  Didn't  you  say  that  you  thought  you  hit.  the  Staunton  court  in  May  ?— A. 
That's  my  recollection  of  my  evidence. 

Int.  You  didn't  hit  that  court,  did  you  ? — A.  No,  sir. 

Int.  Did  you  hit  the  Charlottesville  court  in  May? — A.  My  impression  is  that  I  did. 

Int.  Did  you  bring'  a  single  Charlottesville  man  with  you  in  the  May  trip  ? — A.  I 
can't  call  to  mind  whether  I  did  or  not,  but  if  I  had  the  roster,  or  any  other  list  of 
the  names  of  the  parties,  I  could. 

Int.  Don't  you  know,  outside  of  the  roster,  what  men  you  brought  in  the  May 
crowd? — A.  If  I  heard  the  list  of  nauie«  called  I  could  tell  perhaps.  The  roster  was 
the  only  book  of  the  Consolidation  Coal  Company  that  I  ever  remembered  to  have 
handled,  except  the  miners'  book. 

Again,  as  to  the  roster: 

Int.  Do  you  say  that  by  examining  the  roster  you  could  tell  more  about  these  men 
than  otherwise  ? — A.  lean. 

Int.  Examine  the  book  now  shown  you  and  state  whether  that  is  the  book  men- 
tioned by  you  in  your  testimony. — A.  Yes,  sir  ;  I  believe  it  is. 

Int.  Does  that  book  show  the  date  of  the  arrival  of  each  man  ? — A.  I  don't  see  it 
here,  sir. 

Int.  Does  it  enable  you  to  testify  with  any  greater  certainty  or  more  particularity 
than  you  could  do  without  it  ? — A.  Yes,  sir ;  from  association.' 

Int.  What  is  it  you  cannot  explain  f— A.  In  the  first  place,  on  the  index  sheet  the 
names  do  not  appear  as  they  arrived  at  Muchachiuock ;  for  instance,  James  Ash's 
name  is  the  first  on  the  list,  and  Hesekiah  Adams',  both  of  which  came  in  the  fourth 
party,  and  Charles  Allen  came  in  the  second,  and  he  is  below  them. 

Int.  Explain  fully,  as  fully  as  you  wish  and  can,  when  and  how  that  roster  enables 
yon  to  testify  to  anything  with  more  particularity  or  certainty  than  vou  can  do  or 
have  done  without  it.— A.  lam  enabled  by  having  the  names  before  me  to  associate 
them  one  with  another  ;  that  would  make  me  identify  them  as  to  their  arrival,  as  to 
the  time  they  came  and  party  they  came  in.  To  illustrate  I  will  use  a  list  of  four  or 
five  names.     I  catcJi  one  that  I  can  associate  with  the  crowd,  and  iheu  I  can  catch 


COOK   VS.    CUTTS.  279 

tlie  lialance  that  came  with  him.  Here  I  see  the  Rev.  Charles  Brookens  came  iu  the 
July  party,  aiirl  I  know  that  James  Oaten  and  Hezzy  Adams  was  in  that  party,  and 
soon  all  the  way  throntjh. 

Int.  Yon  gave  some  other  illnstrations  there,  Charles  Allen  and  some  others. — A. 
I  remember  distinctly  that  Charles  Adams  came  in  the  second  party  ;  Sophia  Banks 
camo  in  the  second  party  ;  Frances  Brij^gs  came  in  the  first  party  ;  she  was  the  only 
woman  in  the  i)arty  ;  Daniel  Booker  came  in  the  first  party  and  left  before  the  second 
party  came ;  Frank  Bnsli  came  in  the  second  party,  and  I  brought  his  wife  in  the 
July  party  ;  Lee  Bugher  came  in  the  first  party,  and  left  pretty  soon  ;  Isaac  Brookens 
«auie  in  the  first  party,  and  had  a  severe  spell  of  sickness  and  left  in  a  .short  time. 

He  said  he  could  fix  dates  and  things  by  association,  and  states  one 
instance  in  the  ca.se  of  the  name  of  Sophia  Banks.  But  contestant  had 
seen  demonstrated  that  he  had  no  accurate  power  of  association  and 
dro]iped  him,  and  neither  he  nor  the  witness  proceed  tcith  the  aid  of  the 
roster  about  which  there  had  been  so  much  clamor  and  hard  accusa- 
tions made  against  the  contestee  prior  thereto.  The  con testee  consented 
to  waive  the  question  of  time.  But  contestant  had  the  witness  swear 
that  he  had  had  a  bad  .sick-headache  all  the  time  during  which  he  had 
been  testifying,  as  though  that  could  add  any  weight  to  his  evidence. 

It  tumeA  out  that  the  one  thing  about  which  he  was  certain,  to  wit, 
that  Sophia  Banks  came  in  the  second  party,  was  otherwise.  Page 
Irwin  and  others  show  conclusively  that  she  came  in  the  July  party. 
(Rec,  p.  oQO  etseq. ;  Jones,  p.  550.) 

Contestant  had  had  access  to  the  papers  of  the  company,  and  had 
taken  away  and  kept  the  pay-rolls.  He  said  he  could  not  find  the  pay- 
roll for  April,  and  that  is  not  here.  He  produces  only  those  for  5lay 
iind  March,  and  up  to  what  date  they  run  does  not  appear.  All  subse- 
<iueut  to  May  contestant  got,  but  he  don't  produce  and  put  them  in  evi- 
dence.   If  we  had  June,  it  may  have  covered  part  or  all  of  May. 

Is  it  an  answer  to  say  that  contestee  failed  to  refute  this  evidence  ? 
It  appears  that  endeavor  had  been  made  to  get  the  witnesses,  but  they 
were  not  obtainable.  The  men  at  the  mines  had  dispersed  and  gone. 
And  contestee  was  engaged  in  discharging  his  duty  as  a  member  iu 
term  time,  was  known  to  be  ill,  and  so  great  diligence  could  not  be  rea- 
sonably required  of  him  as  under  other  circumstances  perhaps.  He 
had  a  right  to  stand  on  his  prima  facie  title  until  it  was  overthrown  by 
competent  and  credible  evidence.  And  this  had  not  been  done,  in  my 
judgment. 

I  now  c^U  to  the  attention  of  the  House  other  elements  by  which  the 
credibility  of  Major  Shumate  is  impaired. 

6.  It  appears  that  Shumate  advised  men  to  vote  who  he  knew  were  not 
legal  voters. 

Isaac  Downey  testifies  thus,  viz : 

Int.  5.  What  was  the  conversation  yon  had  upon  that  subject  T — A.  It  was  some 
time  in  October,  sir,  in  the  year  1880,  while  Major  Shumate  was  there.  I  told  him  I 
had  a  notion  to  come  to  Iowa,  but  did  not  want  to  come  until  his  return  again,  so 
that  I  could  get  in  my  vote  for  President.  He  then  said  that  it  did  not  make  a 
damned  bit  of  difterence  ;  that  I  could  vote  iu  two  weeks  after  I  arrived  in  the  State. 
<Rec.,  582.) 

Minor  Henderson  testifies  that  on  the  day  of  the  election — 

H#( Shumate)  asked  me  if  I  was  going  to  vote  ?  I  told  him  no,  sir.  He  asked  me 
why  ?  I  told  him  I  had  not  been  out  here  long  enough  to  vote.  He  then  told  me  I 
could  go  and  vote  here  if  I  had  only  been  here  out  one  day.     (Rec,  579.) 

John  Hawkins's  testimony  is  this,  viz : 

He  told  me  to  go  ahead  and  vote,  that  the  people  did  not  swear  here  like  they  did 
in  Virginia,  and  I  came  pretty  near  going  to  vote.  The  wagon  was  so  near  full  that 
I  did  not  go  at  that  time. 

Int.  7-  What  did  you  say  to  him  when  he  asked  you  to  go  and  vote  T — A.  I  told  him 


280  DIGEST    OF   ELECTION   CASES. 

I  did  not  like  to  do  it ;  that  I  did  not  do  it  at  home.  He  said  it  made  no  difference  here^ 
The  -wagons  came  back  the  second  time ;  I  took  a  second  thought  and  would  not  go 
at  all.  .    ^^ 

Int.  8.  How  long  had  you  been  in  the  State  at  the  time  of  the  election  m  Novem- 
ber, 1880  f— A.  About  a  mouth,  and  cannot  tell  exactly  how  many  days. 

Int.  9.  Did  Shumate  know  that  you  had  only  been  here  about  that  long  ?— A.  Of 
course  he  did,  when  he  came  with  me.     (Rec,  604.)  ^ 

Attempt  is  made  to  palliate  the  effect  of  this  by  showing  that  he  did 
not  know  the  law.  But  this  is  hardly  probable,  as  he  had  voted  him- 
self at  prior  elections  and  lived  long  in  Iowa. 

If  he  did  not  know,  and  attempted  to  induce  a  man  to  vote  without- 
first  ascertaining,  this  proves  a  recklessness  and  wantonness  not  credi- 
table to  him.  He  was  a  Democrat,  and  it  may  be  said  that  he  would 
not  be  likely  to  urge  votes  which  he  might  infer  would  be  cast  for  the 
Eepublican  candidates.  It  don't  appear  that  the  men  named  were  Ee- 
publicans.  It  is  proved  that  some  negroes  were  otherwise,  and  cheer* 
W'Cre  given  among  them  for  Hancock. 

If  colored  men  went  from  the  mines  to  vote.  Major  Shumate  was  there^ 
and  he  would  be  likely  to  know  it.  Although  he  did  not  himself  go  to 
the  polls  and  see  who  voted,  he  saw  who  went,  as  the  witness  Hawkins- 
speaks  of  him  as  if  near  the  wagon  in  which  the  men  were  being  carried 
to  the  polls.  In  the  conversation  which  I  will  give  soon,  he  assumes  to^ 
know  who  voted,  and  clearly  had  an  opportunity  to  see  and  know  who 
went.  The  negro  vote  had  been  canvassed  before  the  election.  If  he 
knew  that  persons  were  going  to  vote  who  had  not  the  requisite  resi- 
dence, his  duty  was,  in  his  relations  to  them,  to  warn  them  against  it. 
As  a  Democrat  he  would  have  been  likely  to  do  it,  in  the  interest  of  hia 
party,  and  as  a  patriot  he  ought  to  have  done  it. 

7.  Shumate  is  impeached,  and  his  present  story  contradicted  by  what 
he  had  previously  solemnly  declared  when  the  matter  was  fresh  in  mind- 
After  the  election  was  over  and  a  contest  threatened  or  begun — when 
inquired  of  about  it,  or  when  the  subject  was  being  mooted — he  would 
or  should  have  told  the  truth,  if  he  said  anything  and  was  a  man  of  ve- 
racity. "What  did  he  do  and  say  !  I  take  his  own  testimony  and  let 
that  speak  for  him,  without  resorting  to  that  given  by  others: 

Int.  Do  you  know  W.  A.  Lindly  ? — A.  I  do,  sir ;  cashier  of  the  bank. 

Int.  Did  you  have  a  conversation  with  him  about  the  mouth  of  April,  1881,  at  the 
Oskaloosa  National  Bank,  and  soon  after  you  returned  from  Virginia  in  that  month,, 
in  which  you  said  to  him  in  response  to  a  question  that  you  were  acquainted  with  all 
of  the  colored  men  at  the  mines,  and  that  those  who  voted  were  legal  voters  and  had 
a  right  to  vote,  and  that  the  charge  that  any  of  them  had  voted  illegally  was  entirely 
imfounded,  or  words  to  that  eftect  ? — A.  I  had  a  conversation  with  Mr.  Lindly  with 
reference  to  the  charge  of  illegal  voting,  to  the  eifect  that  the  charge  of  illegal  vot- 
lAg  was  false,  and  from  my  information,  not  all  voted  that  had  a  right  to  vote,  and 
from  my  information  that  the  charge  was  false,  for  I  never  knew  how  many  men  did 
vote,  but  with  reference  to  several  conversations  I  had  I  have  invariably  made  the 
same  statement,  according  to  the  best  of  my  information. 

Couple  this  with  the  fact  that  he  knew  when  the  wagon  loads  of 
colored  men  went  to  the  polls,  and  had  information  otherwise  on  the 
subject,  and  the  fact  that  he  then  knew  and  had  in  mind  better  than 
now  who  had  come  since  May  15,  what  shall  be  said  of  him  when  he 
'  swears  in  effect  that  one-fifth  of  those  who  went  from  the  mines  to  vote 
had  no  right  to  vote  ?  What  shall  be  said  of  his  solemn  statements  to 
different  parties  after  the  election  day,  when  the  matter  was  fresh  in  hi» 
mind,  when  contrasted  with  his  strained  efforts  of  memory  now  to  gain- 
say the  truth  of  that  statement  ?  Why  did  he  keep  silentso  long,  whei> 
this  contest  had  begun,  and  until  contestant  got  hold  of  him  in  ai» 
emergency  of  his  case  and  in  a  desperate  attempt  to  get  more  evi- 
dence? 


COOK  VS.   CUTTS.  281 

8.  Besides  and  beyond  all  this,  some  25  or  30  witnesses  of  more  or  les» 
weight,  white  and  colored,  impeach  his  character  for  truth  and  veracity 
by  swearing  to  his  bad  reputation  in  that  regard.  If  this  mode  of  im- 
peachment stood  alone,  and  everything  else  which  appeared  in  evidence 
was  above  suspicion  and  reproach,  I  should  not  be  disposed  to  say  much 
about  this  proof  of  bad  reputation.  With  what  has  already  appeared 
in  other  matters  stated,  each  element  gives  countenance  and  support 
to  the  other,  and  they  must  go  together.  Witness  has  sworn  to  what 
he  evidently  could  not  remember,  as  though  he  did  recollect  it,  as  an 
index^endent  matter  of  absolute  memory.  Much  of  his  evidence,  while  it 
cannot  be  said  to  be  willfully  corrupt  from  anything  that  appears,  was^ 
given  with  an  apparent  recklessness  of  statement  in  several  instances^ 
and  it  is  contradictory  and  coniiicting  in  itself.  He  is  contradicted  oa 
several  points  by  other  witnesses  who  seem  credible,  and  the  general 
impeachment  lends  some  aid  at  least,  in  connection  with  that,  to  seri- 
ously impair,  if  not  entirely  to  discredit,  him  as  a  witness.  At  any  rate 
1  respectfully  submit  whether  this  is  not  so. 

He  calls  most  of  his  witnesses  to  sustain  his  character  from  where  he 
was  least  known,  and  few  from  where  he  had  lived  two  years  and  was- 
best  known. 

If  any  one  hesitates  to  find  absolutely  that  Major  Shumate  is  mis- 
taken, or  is  in  error,  or  that  he  is  successfully  impeached,  or  even  that 
he  has  falsified,  he  needs  to  go  no  further  than  to  say  that  contestant's 
claim  now  being  considered  is  not  proved  satisfactorily;  that  it  may  be 
true,  as  testified  to  by  him,  and  it  may  not  be,  but  it  is  not  strong  and 
certain  enough  in  quantity  or  quality  to  ov^ercome  the  contestee's  prima 
facie  right.  Those  who,  on  the  other  hand,  give  full  force  and  credit  to 
Major  Shumate  will  not  hesitate,  probably,  to  charge  the  whole  number 
of  persons  who  voted  and  in  question  with  not  only  voting  illegally,  but 
of  coriHipt  perjury  in  swearing  at  the  polls  that  they  had  resided  in. 
Iowa  the  requisite  six  months,  and  couple  in  the  charge  some  eight 
more  disinterested  colored  men  who  sustain  them.  Some  may  hesitate- 
to  discredit  one  white  man  who  may  be  only  in  error  by  reason  of  im- 
perfect recollection  or  innocent  mistakes,  and  yet  will  not  hesitate  a^ 
moment  to  believe  fourteen  other  men  guilty  of  perjury  on  the  strength 
of  the  testimony  alone  of  that  one  white  man,  besides  leaping  the  wall 
of  strong  presumption  which  the  law  has  built  for  the  protection  of  the 
seat  of  the  contestee.  For  one  I  cannot  go  with  them.  Accordingly  I 
reject  the  claim  of  contestant  in  regard  to  the  seventeen  votes  consti- 
tuting the  second  class,  as  classified  by  me. 

YI. 

As  a  summary  and  in  partial  review  of  the  case  1  have  to  say,  as  my- 
opinion :  It  may  be  treated  as  proved  on  a  preponderence  of  evidence 
that  there  was  a  comi)any  of  colored  persons  who  arrived  in  Iowa  May 
15,  1880,  and  if  established  that  there  was  no  company  taken  by  Major 
Shumate  from  Virginia  to  Iowa  between  April  4,  1880,  and  May  15,, 
the  evidence  is  satisfactory  that  the  following  persons  arrived  May  15,. 
1880,  to  wit :  Jesse  Carroll,  Andrew  Lewis,  Henry  Lewis,  James  CJsher, 
Charles  Garrison,  James  S.  Martin,  and  if  they  are  identified  as  the 
persons  whose  names  appear  on  the  poll  list,  their  votes  were  illegal,  and 
six  votes  should  be  deducted  from  the  vote  of  the  contestee;  that  a  cor- 
respondent of  names  only  is  hardly  a  sufficient  proof  of  identity.  So  that 
the  claim  of  contestant  as  to  what  is  termed  the  "  May  crowd,"  and  in 
regard  to  which  the  evidence  is  very  conflicting  and  troublesome,  may 


282  DIGEST    OF   ELECTION    CASES. 

1)6  allowed,  entirely  disregarding  the  evidence  before  alluded  to,  of 
«ome  twelve  witnesses,  who  swore  positively  to  May  1,  1880,  as  the 
<iate  of  the  arrival  in  May.  I  cannot  and  do  not  resist  the  conclusion 
that  May  15,  1880,  was  the  date  of  the  arrival  of  one  May  crowd.  As  I 
have  already  said,  nothing  can  reconcile  the  evidence  of  some  twelve 
witnesses  that  there  was  an  arrival  of  a  company  of  colored  persons  on 
May  1st  with  the  other  proof  if  there  was  only  one  lot  in  May  ;  but  the 
assumption  that  there  was  another  arrival  between  April  4,  1880,  and 
May  15,  will  reconcile  it.  I  will  concede,  however,  for  the  sake  of  the 
argument,  that  six  votes  are  proved  to  have  been  cast  by  persons  who 
arrived  May  15.  The  contestant  is  still  bound  to  prove  four  more  votes 
to  get  rid  ot  the  ten  majority  found  in  Div.  I ;  and  ten  more,  the  balance 
found  in  favor  of  the  contestee  as  a  balance  in  the  miscellaneous  class. 
This  must  be  got  out  of  the  uncorroborated  evidence  of  Major  Shumate, 
and  taken  from  the  list  of  those  alleged  to  have  come  after  May  15.  No 
man,  woman,  or  child,  colored  or  white,  and  no  documentary  evidence,  sus- 
tains the  evidence  of  Major  Shumate  as  to  that  class  of  voters.  And  the 
unsupported  evi4ence  of  one  man  is  used  to  overcome  the  presumptions  of 
law  and  the  oath  of  each  voter  at  the  polls.  What  impresses  me  against 
«uch  a  conclusion  is  that  what  Shumate  testifies  to  as  to  these  men  was 
,^iven  entirely  from  memory,  without  any  paper  or  document,  or  other  fact 
to  refer  to  in  aid  of  the  memory,  and  when  he  states  no  acquaintance  with 
anyof  the  persons  named  with  the  excepti(»n  of  twoof  them.  Itis  apparent 
that  the  human  mind  ordinarily  is  unequal  to  the  task  of  fixing  such  dates, 
and  to  locate  these  individuals  in  particular  lots  out  of  six  difterent  ones 
of  from  60  to  80  each,  especially  under  the  circumstances  which  the  wit- 
ness gives.  He  does  not  pretend  that  he  can  do  it  with  accuracy,  and 
does  not  assume  to  do  it.  What  he  says  is  mainly  by  impression  only, 
by  process  of  reasoning,  and  oftentimes  argumentatively  or  inferen- 
tially.  He  is  asked  to  name  the  men  who  came  in  the  "  May  crowd," 
He  could  not  do  it,  although  they  were  few  in  number.  He  said  he  could 
■do  it  by  association  if  he  had  the  roster,  and  getting  the  roster  he  swears 
to  one  person  with  great  positiveness,  and  this  by  association,  and  in  this 
instance  he  was  manifestly  in  error,  as  is  shown  by  other  evidence.  He 
attempted  to  fix  the  date  when  the  May  crowd  came  by  saying  that 
he  gathered  the  crowd  at  the  May  term  of  Staunton  court,  which  sat  the 
third  Monday  in  May.  He  had  afterwards  to  confess  his  error  in  this  re- 
gard. A  series  of  mistakes  in  matters  of  memory,  involving  important 
tacts,  appear  as  confessed  by  him.  If  confessed  to  be  mistaken  in  things 
as  to  which  he  pretended  to  be  most  certain,  what  reliance  can  be  put 
upon  his  memory  in  other  vital  matters  where  he  don't  pretend  to  be  cer- 
tain, or  has  nothing  by  which  to  aid  his  memory,  and  especially  where 
the  facts  are  such  that  no  man  of  the  usual  capacity  could  be  expected  to 
inow  or  remember  with  any  accuracy  a  year  and  a  half  afterwards,  and 
when  there  is  no  particular  reason  shown  why  he  should  remember  facts 
and  individuals  in  question?  The  memory  must  be  such  as  to  en- 
able the  witness  to  recognize  and  identify  the  persons,  and  have  them 
correctly  in  mind  when  the  names  are  simply  mentioned  to  him  by  an 
interrogator,  and  tliat  too  where  in  many  of  the  cases  there  were  several 
persons  by  the  same  surname.  It  is  not  in  the  power  of  man  to  do  it 
onder  the  circumstances  appearing.  The  witness  clearly  could  not  have 
proceeded,  unaided,  to  give  the  names  of  any  considerable  number  of  some 
hundreds  of  colored  men,  such  as  he  had  taken  in  crowds  to  Iowa  in 
1880.  He  was  asked  to  do  it  as  to  one,  the  smallest  of  all,  and  failed,  con- 
fessing his  inability.  If  any  one  is  singled  out  and  remembered,  it  must 
be  by  reason  of  some  particular  fact  which  can  be  stated.    The  witness 


COOK   VS.   CUTTS.  283 

does  not  pretend  to  single  out  but  two  persons  whom  be  personally  knew 
and  recollected  for  some  special  reason.  Even  then,  and  as  to  these  two, 
he  does  not  give  any  reason  why  he  locates  them  in  or  outside  of  any  par- 
ticular lot  which  came  to  Iowa.  One  was  as  necessary  as  the  other  in 
order  to  make  the  proof  satisfactory.  'So  one  can  read  the  whole  evi- 
dence of  Major  Sbumate  (p.  321  etseq.  and  400  etseq.)  without  being  thor- 
oughly impressed  with  the  weakness  and  inaccuracy  of  his  memory 
when  standing  alone  and  unaided.  He  says  finally  that  he  cannot  tell 
■what  is  asked  of  him  by  memory,  as  he  has  no  books,  papers,  or  mem- 
oranda to  aid  his  memory.  He  changes  his  prior  testimony  on  essential 
facts  when  the  documentary  evidence  is  found.  As  to  the  colored 
jjersons  coming,  as  is  alleged,  after  May  15,  he  finds  nothing  whatever 
to  aid  his  memory,  and  confesses  that  he  cannot  fix  the  dates  by  the 
roster  when  that  is  produced  and  shown  him,  although  he  had  before 
stated  that  he  could  do  so  by  that,  and  he  does  not  do  it,  and  the  matter 
is  then  dropped.  When  he  is  recalled,  after  talking  quite  a  while  and 
using  means  to  refresh  his  recollection,  he  finds  only  letters  to  refresh 
it  by.  He  adds  nothing  by  which  he  fixes  the  dates  and  lots  at  or  in 
which  persons  came,  and  that  matter  is  left  as  it  stood  in  his  prior 
examination,  found  on  pages  322-323  of  the  record.  When  we  add 
to  this  looseness  of  memory,  and  the  proof  of  so  many  gross  errors 
of  memory  and  grave  mistakes,  the  other  facts  which  show  his  polit- 
ical bias  to  be  in  favor  of  contestant,  if  either  one,  and  which  tend  to 
shake  him  as  a  credible  witness  generally,  and  he  is  otherwise  so  strongly 
imi)eached  by  other  evidence,  I  am  unable,  in  the  discharge  of  my  duty, 
to  find  as  proved  any  illegal  votes  out  of  the  lot  alleged  as  coming  after 
May  15.  It  is  enough  to  say  that  the  illegal  votes  are  not  proved,  and 
that  the  legal  presumption  in  that  event  must  be  allowed  to  stand,  and 
will  prevail. 

Nothing  remains  then  but  to  give  the  figures  showing  the  result 
reached  by  me : 

Start  with  the  ten  majority  for  the  contestee,  as  found  at  the  end  of  Division  I.  10 
Add  the  balance  found  in  favor  of  contestee  under  Division  II 10 

We  have  a  majority  of. ;. 20 

Deduct  six  votes  from  the  May  crowd,  which  is  in  doubt  and  dispute,  but  con- 
ceded for  the  purpose  of  the  argument 6 

Balance 14 

If  the  balance  in  the  miscellaneous  class  (oiitside  the  colored  men  from  the  mines) 
is  increased,  as  found  by  Mr.  Thompson,  to  fourteen,  as  he  seems  to  tind,  this 
balance  is  made  to  be 18 

Even  if  great  liberality  is  exercised  toward  Major  Shumate,  and  he 
is  found  to  remember  Mr.  Hues  and  Spencer  James  in  the  second  class 
for  special  reasons  given  so  as  to  entitle  his  memory  to  credit  thus  far, 
and  they  are  proved  to  have  voted  for  contestee  (as  they  are  not),  this 
does  not  atfect  the  result  materially  in  either  aspect. 

I  find  the  contestee's  net  majority  to  be  14. 

I  recommend  the  passage  of  the  following  resolution : 

Resolved^  That  M.  E.  Cutts  is  entitled  to  retain  his  seat  as  Eepresent- 

ative  from  the  sixth  Iowa  Congressional  district  to  the  Forty-seventh 

Congress. 
Resolved,  That  John  C.  Cook  is  not  entitled  to  the  said  seat. 


284  DIGEST  OF  ELECTION  CASES. 

AliEXANDER  SMITH  vs.  E.  W.  ROBERTSON. 

Sixth  CoNaEESSiONAL  Disteiot  of  Louisiana. 

This  case  was  dismissed  because  of  failure  on  the  part  of  contestant  to  take  testimony 
and  prosecute  his  case  according  to  law. 


Maeoh  4, 1882.— Mr.  Millee,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

EEPOBT: 

The  committee  to  whom  loas  referred  the  above  case  have  had  the  same  under 
consideration,  and  beg  leave  to  report : 

That  after  hearing  argument,  and  after  a  fall  examination  of  the 
papers,  it  was  unanimously  agreed  by  the  subcommittee  having  the  case 
in  charge  that  the  contestant  had  not  prosecuted  his  case  according  to 
law ;  that  he  failed  to  take  evidence  to  substantiate  his  charges  of  con- 
test ;  and  therefore  recommend  that  th«  contest  be  dismissed ;  which  the 
full  committee,  upon  due  consideration^  concluded  to  recommend.  The 
committee  therefore  report  the  following: 

Resolved,  That  the  contest  of  Alexander-  Smith  vs.  E.  W.  Eobertson, 
in  sixth  Louisiana  district,  be  dismissed  without  prejudice. 


SAMUEIj  J.  ANDERSON  vs.  THOMAS  B.  REED. 

Fiest  Oongeessional  Disteiot  of  Maine. 

Contestant  charges  that  voters  were  bribed  to  vote  for  contestee ;  that  persons  were 
allowed  to  vote  who  had  no  right  to,  and  some  were  refused  the  right  to  vote 
who  were  entitled  to ;  and  that  there  was  intimidation  which  prevented  the  real 
expression  of  the  voice  of  the  people. 

Held,  as  to  the  charge  of  bribery,  that  there  is  no  suggestion  or  intimation  made  of 
any  complicity  in,  or  even  knowledge  of,  the  same  on  the  part  of  contestee. 

That  as  to  case  of  illegal  voters  and  rejection  of  legal  votes,  there  is  no  proof  of  fraud 
or  willful  wrong,  only  that  the  selectmen  erred  in  judgment,  and  something  more 
than  conflicting  is  required  to  reverse  their  decision. 

The  evidence  does  not  substantiate  the  charge  of  intimidation. 

The  House  adopted  the  report. 


July  18, 1882. — Mr.  G.  0.  Hazelton,  from  the  Committee  on  Elections, 
submitted  the  following 


REPORT. 


TJie  Committee  on  Elections,  to  whom  were  referred  the  papers  relating  to 
the  contested-election  case  in  the  first  Congressional  district  of  Maine ^ 
having  had  the  same  under  consideration,  submit  the  folloicing  report: 

The  testimony  in  this  case  shows  from  unquestioned  facts  that  the 
contestee  received  123  more  votes  than  the  contestant. 


ANDERSON   VS.    REED.  285 

This  plurality  the  contestant  seeks  to  overthrow  by  three  separate 
allegations: 

First.  That  some  voters  were  bribed  to  vote  the  Republican  ticket. 

Second.  That  certain  voters  were  allowed  to  vote  who  had  no  right 
so  to  do,  and  certain  voters  were  refused  the  right  to  vote  who  were 
really  voters. 

Third.  That  there  was  intimidation  which  prevented  the  expression 
of  the  real  voice  of  the  people  of  the  district. 

Taking  these  allegations  in  their  order  we  find  the  facts  to  be  as  fol- 
lows : 

First.  As  to  the  charge  of  bribery,  no  suggestion  or  intimation  is 
made  of  any  complicity  or  even  knowledge  on  the  part  of  the  sitting 
member. 

Whoever  was  bribed  voted  for  the  member  of  Congress  simply  because 
his  name  was  on  the  general  ticket.  The  number  of  cases  alleged  by 
the  contestant  seem  to  be  but  seven,  of  which  one  is  proved  by  the 
statements  of  the  man  bribed,  which  are  not  contradicted.  The  rest  are 
in  dispute  and  rest  on  rather  vague  evidence. 

Second.  As  to  the  charge  of  admission  and  rejection  of  voters.  In 
order  to  understand  the  bearing  of  the  testimony  it  is  necessary  to  un- 
derstand the  law  of  elections  of  the  State  of  Maine.  By  section  25, 
chapter  4,  of  the  revised  statutes  of  that  State,  it  is  made  an  essential 
prerequisite  to  the  right  of  voting  that  the  voter's  name  shall  be  on  the 
check  list,  which  is  the  registry  of  the  names  of  voters.  These  check 
lists  are  made  up  in  different  ways  in  municipalities  of  different  sizes. 

In  cities  the  general  law  is  that  the  aldermen  shall  be  in  session,  open 
to  all,  for  six  days  before  the  election,  which  takes  place  on  Monday,  to 
revise  the  lists  which  are  made  out  for  each  ward  by  assistant  assessors, 
who  go  from  house  to  house. 

After  the  assistant  assessors  have  made  their  lists  from  the  best  in- 
formation they  can  get,  they  post  the  names  in  alphabetical  order  in 
front  of  the  ward-rooms  and  in  other  public  places,  so  that  the  voter 
prior  to  the  open  sessions  of  the  aldermen  may  scan  the  list  and  see  if 
his  name  is  on  it.  During  the  six  days  those  whose  names  are  omitted, 
or  incorrectly  on,  appear,  and  the  needful  corrections  are  made. 

The  lists  thus  revised  and  corrected  are  sent  to  the  different  wards, 
and  as  the  voter  comes  to  the  desk  his  name  is  checked,  and  he  votes. 
If  his  name  is  not  on  the  list  he  cannot  vote.  In  towns  having  one 
thousand  or  more  registered  voters  the  selectmen  sit  for  three  days  to 
correct  the  lists. 

In  tow^ns  of  between  five  hundred  and  one  thousand  voters  the  board 
sits  one  or  more  days. 

In  towns  of  less  than  five  hundred  voters,  the  selectmen  correct  the 
list  before  the  polls  open  and  during  the  entire  day.  All  these  different 
sessions  are  open  and  public. 

The  contestant  claims  that  a  number  of  voters  voted  for  Reed  who 
had  no  right  to,  and  another  number  who  would  have  voted  for  Ander- 
son were  not  allowed  so  to  do.  These  numbers  if  added  together  he 
claims  would  overcome  the  123  plurality. 

It  is  to  be  observed  in  regard  to  all  these  cases  that  there  are  no  alle- 
gations of  fraud  or  willful  wrong,  only  that  the  selectmen  erred  in  judg- 
ment. It  is  an  appeal  from  those  who,  especially  in  the  towns,  were 
perfectly  conversant  with  the  status  of  every  voter  to  Congress,  on  evi- 
dence taken  in  depositions. 

The  nature  of  some  of  this  evidence  may  be  inferred  from  the  follow- 
ing extracts  from  contestant's  brief: 


286  DIGEST  OF  ELECTION  CASES. 

At  Falmoutli,  it  is  both  affirmed  and  denied  that  Dayen,  Stone,  and  True,  who 
voted  for  Eeed,  were  non-residents  or  paupers,  and  that  the  votes  refused  to  Andorsou 
of  Murray,  Reynolds,  and  Black  were  lawtul  oues  (pp.  131  to  133,  and  206-7,  215-17, 
and  293-4).     the  officials  to  decide  were  partisans  of  Reed. 

At  Standish,  McKenzie,  a  non-resident,  voted  for  Reed.  Cotton  voted  for  Reed, 
and  says  he  was  not  bribed  (p.  291) ;  though  his  father  supposed  it  to  be  an  admitted 
fact  that  he  was  (p.  150).  Merrill,  of  Washington,  voted  for  Reed  at  Brighton,  where 
his  residence  is  both  denied  and  affirmed  (pp.  160-1-2  ^.nd  315,  348,  364). 

At  Westhook,  the  evidence  sharply  conflicts  as  to  the  right  of  Hoegg  and  others  ta 
vote  for  Reed  (pp.  117  and  249-50). 

At  Otisfield,  Pike  and  McNeil  voted  for  Reed.  It  is  positively  affirmed  and  denied 
that  thev  were  non-residents  (pp.  51  and  330-3-5). 

At  Gorham,  Ney,  Rowe,  and  Shaw,  non-residents,  voted  for  Reed  (p.  163).  And  Ba- 
con and  Hall's  votes  refused  to  Anderson  (p.  102).  An  attempted  explanation  will  be 
found  on  page  297.  Ney's  name  was  added  on  election  day ;  and  a  witness  says  Hall 
admitted  he  was  not  a  voter  (p.  222). 

These  examples  will  be  found  on  pages  10  and  11  of  contestant's  brief. 

An  examination  of  the  testimony  will  show  that  every  case  is  a  dis- 
puted one  which  has  been  settled  on  testimony  more  or  less  conflicting 
by  men  who,  as  selectmen  of  the  town,  were  thoroughly  familiar  with 
all  the  facts,  and  in  the  open  town-meeting,  in  the  presence  of  men  who 
also  knew  all  the  facts.  To  overrule  such  decisions  in  the  absence  of 
any  suggestion  whatever  of  bad  faith  would  need  something  more  than 
conflicting  evidence.  There  was  another  class  of  cases  in  Portland 
where  it  does  appear  that  a  small  number  of  voters  lost  their  rights 
because  of  a  failure  to  look  after  their  registry.  But  this  is  shown  on 
both  sides,  and  was  evidently  the  result  of  carelessness  on  the  part  of 
the  voter  and  such  accidents  as  must  occur  in  a  registry  of  more  than 
7,000  votes. 

It  should  be  added  that  cases  of  similar  proof  were  shown  on  the  part 
of  the  contestee,  both  as  to  the  class  of  omitted  voters  and  as  to  the 
cases  of  bribery,  but  we  have  not  deemed  it  necessary  to  particularize, 
because  the  contestant  ^n  the  testimony  does  not  make  out  his  own  case. 

The  contestant  points  out  the  fact  that  in  Portland  two  to  one  of  his 
supporters  were  put  on  the  lists  by  the  aldermen,  which  indicates  that 
they  were  left  off'  by  the  assistant  assessors ;  and  therefore,  he  says,  the 
omission  was  intentional.  But  when  the  fact  is  borne  in  mind  that  in 
the  wards  of  floating  population,  where  most  of  these  names  are  put  on, 
the  Democratic  vote  is  more  than  two  to  one,  the  omission  proves  the 
very  contrary,  and  is  just  what  might  have  been  expected. 

Third.  As  to  the  chance  of  intimidation,  the  evidence  falls  far  short 
of  substantiating  the  charge.  It  consists  mostly  of  hearsay  and  rumors^ 
and  does  not  disclose  a  single  instance  of  violence  or  even  threatened 
violence.  A  common  report  '<  that  men  would  lose  their  job  "  if  they  did 
not  vote  as  their  superiors  directed,  and  the  testimony  generally  referred 
to  in  contestant's  brief  (pp.  4  and  5),  hardly  constitute  such  an  over- 
throw of  men's  wills  and  determinations  as  can  be  taken  notice  of  by 
the  law. 

Your  committee  therefore  recommend  the  adoption  of  the  following 
resolutions : 

Resolved,  That  the  contestant,  Samuel  J.  Anderson,  was  not  elected, 
and  is  not  entitled  to  his  seat  in  this  Congress. 

2.  That  Thomas  B.  Eeed,  the  contestee,  was  elected,  and  is  entitled 
to  retain  bis  seat  in  this  Congress. 


BUCHANAN    VS.    MANNING.  287 

GEORGE    M.    BUCHAIS^AN    vs.    VAX    H.    3IAXXIXG. 

Second  Congressional  District  of  Mississippi. 

Contestant  in  his  notice  sets  ont  thirteen  grounds  of  contest.  Contestee  challenged 
the  sufficiency  of  the  allegations  of  said  notice  and  insisted  the  same  ought  to  be 
dismissed. 

Held,  That  all  the  allegations  in  the  notice  of  contest  are  insufficient. 

[The  committee,  however,  examine  the  case,  preferring  not  to  rest  a  decision  upon  the 
sufficiency  of  the  pleadings,  "  for  if  the  testimony  taken  in  the  case  develops  the 
fact  that  the  sitting  member  was  not  elected,  it  would  be  our  duty  to  so  report^ 
although  the  contestant  might  not  be  entitled  to  his  seat,  having  failed  to  comply 
with  the  law  with  respect  to  the  sufficiency  of  his  notice." 

Held,  That  one  precinct  should  be  rejected  because  contestee's  party  friends  fired  a 
cannon  in  close  proximity  to  the  polls,  and  kept  it  up  for  quite  a  while;  another 
precinct  should  be  rejected  because  the  ballot-box  was  sttiflfed ;  and  others  because 
of  the  exclusion  of  United  States  supervisors  of  election  from  the  polls  and  tke 
counting  of  the  ballots.  J 

The  House  adopted  the  majority  report. 


January  29, 1883. — Mr.  Calkins,  from  the  Committee  on  Elections, 
submitted  the  following 

BEPOBT: 

A  majority  of  your  eommittee,  to  whom  was  referred  the  ahove-entitUd  con- 
tested-election case  of  the  second  Congressional  district  of  Mississippi^ 
having  had  the  same  under  consideration^  beg  leave  to  report : 

There  were  three  candidates  voted  for  at  the  November  election,  1880,^ 
in  this  district.  The  returned  vote  from  the  various  counties  compos- 
ing the  district  was  as  follows :  Manning,  15,255 ;  Buchanan,  9,996 ;, 
Harris,  3,585. 

The  district  is  composed  of  Union,  Tippah,  Benton,  Marshall,  La 
Fayette,  Yalobusha,  Panola,  De  Soto,  Tate,  and  Tallahatchie  Counties. 

This  contest  was  begun  by  the  contestant,  George  M.  Buchanan, 
against  the  sitting  member.  Tan  H.  Manning,  and  in  his  notice  of  con- 
test he  alleges  the  following  grounds : 

1st.  That  in  a  portion  of  the  counties  comprising  said  district  such  persons  were 
not  appointed,  neither  was  such  representation  given  to  the  different  political  parties 
in  said  counties,  in  the  appointment  of  county  commissioners  of  election,  as  was  de- 
signed and  required  by  law. 

2d.  That  in  a  portion  of  the  counties  copiprising  said  district,  election  districts 
■were  abolished  and  other  election  districts  established,  without  complying  with  and 
in  violation  of  law. 

3d.  That  in  a  portion  of  the  couuties  comprising  said  district  the  registration  of 
voters  was  not  conducted  as  required  by  law,  thereby  depriving  a  large  number  of 
persons  (of  lawful  right)  of  the  privilege  of  registering  and  voting. 

4th.  That  at  a  large  number  of  voting  places  in  said  district,  in  the  appointment 
of  inspectors  of  election,  such  persons  were  not  appointed,  nor  was  such  representa- 
tion given  (in  making  said  appointments)  to  the  different  political  parties  as  was  de- 
signed and  required  by  law. 

5th.  That  iu»  several  of  the  counties  comprising  said  district  a  large  numb  erof  per- 
sons lawfully  entitled  to  register  were  refused  registration,  and  that  the  registration 


288  DIGEST    OF    ELECTION    CASES. 

and  transferriDg  of  voters  was  discontinued  many  days  prior  to  the  time  contemplated 
by  law,  thereby  depriving  a  large  number  of  persons,  lawfully  entitled  to  register 
<or  to  transfer),  from  the  right  of  registering,  and  transferring  and  voting  ;  and  that 
in  a  portion  of  said  counties  the  registration  books  were  for  a  time  removed  from  the 
place  designated  by  law  for  their  keeping,  thereby  depriving  a  large  number  of  per- 
sons (of  lawful  right)  of  the  privilege  of  registering  (or  transferring)  and  voting. 

6th.  That  at  a  large  number  of  voting  places  in  said  district  many  lawful  voters 
were  not  pennitted  to  vote,  their  votes  having  been  tendered  and  rejected  by  the  in- 
spectors of  election  ;  that  such  unlawful  interference  and  hinderance  was  permitted 
and  practiced  (such  as  is  specially  forbidden  by  law)  as  to  obstruct  and  confuse  the 
voters  in  the  act  of  voting,  or  to  deceive  and  prevent  a  large  number  of  voters  from 
delivering  their  ballots  at  the  proper  voting  places ;  that  a  large  number  of  persons 
were  permitted  to  vote  for  you  who  had  no  legal  right  to  vote. 

7th.  That  at  many  of  the  voting  places  United  States  supervisors  of  election  were 
not  permitted  to  exercise  the  duties  of  their  office,  being  prevented  therefrom  by  the 
nnlawful  interference  of  other  officers  of  election,  or  from  other  sources,  in  violation 
of  law,  and  to  such  an  extent  as  to  prevent  their  ascertaining  the  result  of  the  election 
and  from  performing  other  duties  required  of  them  by  law;  that  no  separate  lists  of 
the  names  of  voters  were  kept  by  the  clerks  of  election,  as  was  required  by  law  ;  that 
the  polls  were  not  opened  at  the  time  required  by  law,  were  not  kept  open  contin- 
xiously  from  9  a.  m.  till  6  p.  m.,  as  required  by  law,  and  that  upon  the  closing  of  the 
polls  the  counting  of  the  vote  and  making  up  of  returns  was  not  done  at  the  voting 
places  nor  at  the  time  required  by  law. 

8th.  That  at  many  of  the  voting  places  ballots  were  received  and  counted  that  were 
not  lawful  ballots  in  form  and  print ;  that  inspectors  of  election  rejected  and  refused 
to  count  ballots  that  were  lawful  after  the  same  had  been  lawfully  deposited  in  the 
ballot-boxes ;  that  inspectors  of  election  (with  knowledge  of  the  fact  at  the  time)  per- 
mitted ballots  to  be  votf  d  that  were  not  lawful  ballots ;  that  during  the  hours  pre- 
scribed by  law  for  voting  voters  were  harassed  and  disturbed  in  such  manner  as  to 
prevent  their  voting  in  a  free,  fair,  untrammeled,  and  peaceable  manner. 

9th.  That  the  names  of  a  large  number  of  legally  registered  voters  were  not  placed 
upon  the  poll-books  (by  the  officers  whose  duty  it  was  to  place  said  names  on  said 
books)  used  at  many  of  the  voting  places,  and  that  in  consequence  thereof  said  legally 
registered  voters  were  not  permitted  to  vote,  their  votes  being  refused  by  the  inspect- 
ors of  election,  said  inspectors  giving  as  a  reason  for  such  refusal  to  receive  such 
votes  that  the  names  of  the  parties  applying  to  vote  were  not  on  the  poll-books. 

lOth.  That  the  entire  vote  polled  and  counted  and  returned  at  a  part  of  said  voting 
places  was  unlawfully  rejected  and  thrown  out  (and  not  counted)  by  the  county  com- 
missioners of  election  on  making  up  their  returns  of  the  total  vote  of  the  county. 

11th.  That  at  a  portion  of  the  voting  places  the  ballot-boxes  were  not  opened  in 
public  when  the  polls  closed,  nor  was  the  vote  counted  in  public  nor  at  the  time  re- 
quired by  law  to  be  counted ;  that  in  making  up  the  returns  a  large  number  of  ballots 
■were  counted  as  having  been  cast  for  you,  when  in  truth  and  in  fact  such  ballots  were 
oast  for  other  persons,  or  were  ballots  placed  in  the  boxes  in  a  manner  not  authorized 
by  law. 

12th.  That  at  many  of  the  voting  places  a  much  larger  number  of  votes  were  returned 
as  having  been  polled  than  were  actually  polled  at  said  voting  places;  that  at  many 
of  the  voting  places  the  poll-books  for  said  places  unlawfully  contained  the  names  of 
a  large  number  of  voters,  which  voters  had  no  right  to  a  vote  at  such  voting  places, 
but  resided  in  other  election  districts,  and  that  the  names  of  said  voters  also  appeared 
on  the  poll-books  of  the  voting  places  of  election  districts  to  which  said  voters  of  right 
belonged. 

13th.  That  at  many  voting  places  the  election  was  conducted  in  many  respects  in 
utter  disregard  of  law  and  the  rights  of  voters ;  that  the  registration  books  and  the 
poll-books  of  a  portion  of  the  counties  and  election  districts  in  said  district  were  at 
divers  and  sundry  times  not  in  the  custody  and  keeping  of  the  proper  lawfully  con- 
stituted officers,  but  were  on  divers  and  sundry  occasions  in  the  care  and  possession 
of  persons  not  la;wfully  entitled  to  such  care  and  possession ;  that  at  a  portion  of  the 
voting  places  lawful  ballots  that  were  cast  for  me  were  not  counted  for  me,  but  were 
(unlawfully)  counted  as  having  been  cast  for  you,  and  were  so  returned  by  the  officers 
of  election :  that  there  were  a  greater  number  of  legal  voters  of  said  district  who  voted 
(or  who  offered  to  register  and  vote),  and  who  were  unlawfully  prevented  therefrom, 
who  desired  me  as  their  Representative  in  Congress  than  there  were  who  desired  you 
as  their  Representative  in  Congress  from  said  district. 

To  this  notice  of  contest  the  sitting  member  files  exceptions  and 
answer  as  follows,  to  wit : 

To  said  notice  I  make  the  following  an  swer,  to  wit : 

First  answer.  1st.  Protesting  against  the  truth  of  the  allegation's  in  said  notice,  I 
object  and  say  that  said  notice  is  so  insufficient  and  defective  that  I  need  not  deny  or 


BUCHANAN    VS.    MANNING.  289 

admit  the  allegation  therefor,  for  the  reasons,  to  wit,  said  notice  does  not  specify  par- 
ticularly the  grounds  upon  which  you  rely  and  gives  no  reasons  for  failing  to  do  so. 

2d.  The  allegations  are  only  conclusions  of  law  and  general  averment  of  wrong- 
<loing  iu  some  uudefiued  portions  of  the  district,  by  unnamed  election  ofiicials  of  pre- 
cincts not  specified,  in  unnamed  counties,  or  by  persons  not  named  or  described,  and 
in  places  and  by  means  not  specified,  and  in  violation  of  laws  and  the  rights  of  others 
not  designated. 

3d.  Your  allegations  are  so  vague  and  nncertain  that  I  am  not  informed  as  to  the 
persons  or  officials  whom  you  accuse  of  crimes,  nor  where  committed,  nor  do  you  aver 
that  such  wrongdoings  were  not  instigated  by  you,  or  that  they  were  known  to  or 
acquiesced  in  by  me,  or  that  the  result  of  the  election  was  changed  by  I'eason  of  the 
matter  set  forth. 

Second  answer.  1st.  Without  waiving  any  objection  to  the  manifold  and  vital  de- 
fects of  said  notice,  but  reserving  all  benefit  and  advantage  thereof,  I  deny  each  and 
«very  ground  of  contest  set  forth  in  said  notice,  and  deny  each  and  every  allegation 
therein  contained,  and  aver  that  throughout  said  Congressional  district  a  free  and 
fair  election  was  held  in  all  respects,  except  that  in  the  county  of  Marshall,  and  in 
other  counties,  at  every  precinct,  divers  colored  voters  who  wished  to  vote  for  me  for 
member  of  Congress  were  deterred  and  prevented  from  doing  so  by  reason  of  the 
threats  of  personal  violence  and  other  means  of  intimidation  used  and  employed  by 
other  colored  people,  the  neighbors  of  such  voters,  the  names  of  all  of  whom  are  un- 
known to  me,  being  instigated  thereto  by  those  who  advocated  your  election,  where- 
by I  received  less  votes  by  one  thousand  or  more  than  I  otherwise  would  and  all  such 
voters  by  means  of  such  intimidation  were  induced,  contrary  to  their  wishes,  not  to 
vote  at  all  or  vote  for  you,  and  thereby  the  great  majority  of  votes  that  I  should  have 
received  more  than  you  at  said  election  was  reduced  to  the  number  of  about  five 
thousand  two  hundred  and  fifty. 

Third  answer.  I  charge  and  aver  that  you  have  made  the  wholesale  charges  of  all 
kinds  of  crime  and  irregularities  contained  in  your  said  notice  without  specifications 
of  persons  or  places,  not  because  you  had  reason  to  believe  thiit  any  one  of  them  had 
been  committed  to  your  injury,  but  with  the  deliberate  purpose  to  evade  the  limita- 
tion of  the  statute  and  to  speculate  upon  any  future  discoveries  of  evidence,  and  so 
you  have  made  unlawful,  vexatious,  and  fraudulent  use  of  the  notice  and  process 
authorized  by  statute,  and  the  same  shonld  be  quashed  and  dismissed. 

It  will  be  noticed  that  the  sufficiency  of  the  contestant's  allegations 
iu  his  notice  of  contest  were  challenged  by  the  contestee  in  the  begin- 
ning, and  have  not  been  waived ;  on  the  contrary,  the  contestee  has 
insisted  that  the  allegations  in  the  noticeof  contest  were  entirely  insuf- 
ficient, and  that  the  same  ought  to  be  dismissed  for  that  reason. 

It  becomes  necessary,  in  the  first  place,  to  pass  upon  the  sufficiency 
of  the  contestant's  notice.  The  first  specification  relative  to  the  repre- 
sentation of  the  different  political  parties  on  the  board  of  county  com- 
missioners of  election  calls  in  question  the  acts  of  the  governor  of  the 
State  in  his  appointment  of  the  commissioners  of  election.    , 

The  machinery  of  elections  by  the  Mississippi  code  is  placed  in  the 
hands  of  the  governor.  He  appoints  the  county  commissioners  of  elec- 
tion, who  iu  turn  appoint  the  precinct  election  officers.  The  precinct 
officers  make  return  of  the  vote  cast  in  the  different  precincts  to  the 
county  board,  who  in  turn  make  their  report  to  the  secretary  of  state. 

By  section  —  of  the  Mississippi  election  law  the  different  political 
Xiarties  are  to  have  representation  on  said  board.  It  ought  to  be  carried 
out  in  good  faitb,  and  the  different  political  parties  ought  to  be  repre- 
sented on  the  election  board.  It  is  a  duty  incumbent  upon  the  executive 
to  see  that  this  provision  of  law  is  carried  out.  It  has  been  found  in 
many  of  the  States  of  the  Union  that  a  provision  iu  the  election  laws 
similar  to  this  is  a  safeguard  against  frauds  and  ballot-box  stuffing. 

The  second  ground  alleged  by  the  contestant  is  that  certain  election 
districts  were  abolished  and  others  established  without  complying  with 
and  in  violation  of  the  law. 

This  allegation  is  clearly  insufficient,  as  being  too  vague  and  general. 
It  would  have  been  an  easy  matter  to  have  named  the  precincts,  and 
pointed  out  how  the  acts  complained  of  tended  to  prevent  a  fair  election, 
n.  Mis.  35 19 


290  DIGEST    OF    ELECTION    CASES. 

The  third  allegation  is  that  in  a  portion  of  the  counties  comprising^ 
the  Congressional  district  the  registration  of  voters  was  not  conducted 
as  required  by  law ;  that  large  numbers  of  them  were  deprived  of  the 
privilege  of  registration. 

This  allegation  is  likewise  uncertain  and  vague,  and  wholly  insuffi- 
cient. 

The  fourth  allegation  is  a  repetition  of  the  first,  except  that  it  applies 
to  the  precincts  or  voting  places,  and  not  to  the  counties,  and  need  not 
be  further  noticed. 

The  allegation  in  the  fifth  ground  of  contest  is  that  in  several  of  th& 
counties  comprising  the  district  persons  entitled  to  register  were  refused 
registration  ;  that  the  registration  was  discontinued  prior  to  the  time 
contemplated  by  law  ;  and  that  in  some  of  the  counties  the  books  were 
removed  from  the  place  designated  by  law  during  the  registration ;  that 
in  consequence  thereof  persons  were  deprived  of  the  right  to  register. 

This  allegation  is  too  general.  The  particular  places  and  the  acta 
complained  of  should  have  been  specifically  set  out.  The  same  may  be 
said  with  reference  to  the  sixth  allegation  in  the  notice  of  contest. 

The  eighth  ground  of  contest  challenges  the  form  and  print  of  the 
tickets,  but  it  is  not  pointed  out  specifically  in  what  the  illegality  con- 
sisted. And  the  ninth,  tenth,  eleventh,  twelfth,  and  thirteenth  grounds 
of  contest  are  open  to  the  same  objections. 

The  seventh  ground  of  contest  alleges  that  at  many  of  the  voting^ 
places  United  States  supervisors  of  election  were  not  permitted  to  exer- 
cise the  duties  of  their  office,  and  were  prevented  therefrom  by  unlawful 
interference  by  the  other  officers  of  election  (we  presume  State  officers). 
This  charge  is  general,  and  it  does  not  specify  any  particular  voting^ 
place  in  the  district  where  these  acts  occurred ;  but,  perhaps,  if  any 
such  unlawful  interference  is  shown  to  have  existed  at  any  of  the  voting^ 
places,  the  committee  would  be  justified  in  considering  the  allegation 
amended  so  as  to  make  it  conform  to  the  proof,  unless  it  were  shown 
that  thereby  an  injustice  because  of  the  insufficiency  had  accrued  ta 
the  contestee. 

This  disposes  of  each  of  the  allegations  of  contest,  and  with  the  sin- 
gle exception  stated,  under  the  uniform  rulings  of  this  committee  and 
the  House,  the  notice  of  contest  would  be  held  clearly  insufficient.  See 
Duffy  vs.  Mason,  Forty-sixth  Congress,  and  cases  there  cited. 

We  prefer,  however,  not  to  rest  our  decision  of  this  case  upon  the 
sufficiency  of  the  pleadings,  for  if  the  testimony  taken  in  the  case  de- 
velops the  fact  that  the  sitting  member  was  not  elected,  it  would  be  our 
duty  to  so  report,  although  the  contestant  might  not  be  entitled  to  hi» 
seat,  having  failed  to  comply  with  the  law  with  respect  to  the  sufficiency 
of  his  notice. 

If  it  be  shown  that  there  was  an  unlawful  interference  with  the  United 
States  supervisors  of  election  whereby  they  were  prevented  from  dis- 
charging duties  which  are  committed  to  their  hands  by  the  law  of  Con- 
gress, it  would  undoubtedly  be  our  duty  to  set  aside  the  election  at  such 
precincts.  The  law  of  Congress  in  respect  to  Congressional  election* 
must  be  obeyed  by  the  people,  and  nothing  will  tend  so  much  to  bring 
this  Government  into  disgrace  as  to  allow  its  will  to  be  nullified  and  its 
officers  overawed  and  prevented  from  performing  their  duty.  One  of 
the  most  sacred  duties  which  this  House  owes  to  the  people  is  to  see  to 
it  that  its  laws  are  enforced  and  obeyed.  The  supervisors  of  election 
are  the  eyes  of  this  House.  Through  them  it  can  scrutinize  every  gen- 
eral election.  Fraud  of  all  kinds  can  be  detected,  and  ballot-box  stuff- 
ing can  be  stamped  out. 


BUCHANAN    VS.    MANNING.  291 

This  Government  is  founded  upon  the  will  of  the  majority.  A  ma- 
jority is  one  more  than  half.  When  this  is  ascertained  it  is  just  as  binding^ 
as  if  maintained  by  a  hirger  preponderating  popular  expression,  and  for 
the  purpose  of  maintaining  the  right  of  the  majority  to  rule  the  super- 
visors' law  ought  to  be  obeyed  and  enforced  with  scrupulous  care.  We 
now  proceed  to  examine  the  supervisors  of  election  appointed  in  this. 
Congressional  district. 

DE  SOTO   COUNTY. 

W.  J.  Butler  was  examin^  as  a  witness  and  testifies  that  he  was  3 
United  States  supervisor  of  elections  for  Lake  Cormorant  voting  place, 
in  said  county.  His  testimony  is  found  at  pages  11  and  12  of  the  Rec- 
ord. We  have  examined  his  testimony  and  find  no  charge  of  fraud,  in- 
timidation, or  ballot-box  stuflBng. 

Charles  Scott,  one  of  the  inspectors  of  that  precinct,  testifies  that 
everything  was  peaceful  and  quiet  on  the  day  of  election.  (Page  13  of 
the  Record.) 

L.  C.  Clay,  United  States  supervisor  of  Oak  G^rove  precinct,  De  Soto 
County,  testifies  to  but  one  fact  which  is  material,  and  that  is  that  there 
were  seventeen  colored  men  and  one  white  man  refused  the  right  of 
voting  because  they  were  not  registered.     (See  page  26  of  the  Record.) 

Felix  Davis,  another  supervisor  of  election,  for  Home  Lake  precinct, 
De  Soto  County,  testifies  to  but  one  material  fact,  which  is  that  one 
James  Brooks,  a  Democratic  inspector,  took  the  ballot-box,  after  the 
ballots  were  closed,  away  with  him  and  had  it  three-quarters  of  an  hour 
out  of  the  sight  of  the  supervisor,  when  it  turned  up  at  Mr.  HoUiday's 
residence,  some  distance  from  the  balloting  place,  and  after  supper  pro- 
ceeded to  count  the  ballots ;  that  the  tickets  on  top  of  the  box  when 
opened  all  seemed  to  be  Democratic  tickets.  During  the  counting  con- 
siderable confusion  ensued  in  consequence  of  suspicious  acts  on  the 
part  of  the  Democratic  inspectors,  and  while  the  box  was  open  a  good 
many  bystanders  gathered  around  it  and  prevented  its  being  scrutinized 
by  this  officer.  They  then  proceeded  to  count  the  tickets,  five  at  a 
time ;  at  the  close  of  the  counting  it  appeared  that  there  were  205  Dem- 
ocratic tickets,  130  Republican,  and  no  Greenback.  Witness  testifies 
that  during  the  counting  he  saw  two  Greenback  tickets,  which  were 
taken  from  the  box  by  a  Democratic  inspector  and  again  put  back  in 
the  box,  but  were  not  counted.  He  also  testifies  that  there  were  35  or 
36  persons  who  offered  to  vote  and  were  refused  because  they  were  not 
registered,  and  that  there  were  about  75  or  100  Republicans  left  the 
polling  place  without  voting  because  of  the  tardiness  with  which  the 
officers  discharged  their  duty,  and  the  vexatious  manner  in  which  the 
time  was  wasted  in  asking  questions  and  the  like.  He  also  testifies 
that  he  was  abused  by  one  H.  M.  Douglass,  one  of  the  officers  of  elec- 
tion, for  being  a  Radical,  and  threats  were  made  against  him.  That 
there  were  four  or  five  men  continually  around  the  box  during  the 
count;  that  they  were  swearing  and  exhibited  their  pistols  in  a  threat- 
ening manner.     (See  pages  31  and  32  of  the  Record.) 

Silas  Turner,  one  of  the  inspectors,  in  a  measure  corroborates  the 
testimony  of  Mr.  Davis.     (See  page  33  of  the  Record.) 

C.  M.  Haynie,  supervisor  for  Olive  Branch  precinct,  De  Soto  County, 
testifies  that  62  Republican  voters  were  refused  the  right  to  vote  because 
they  were  not  registered,  and  that  three  Democrats  and  three  Green- 
backers  were  likewise  denied  the  right  to  vote  for  the  same  reason  at 
that  precinct.     (See  Record,  page  3l.) 


^92  DIGEST  OF  ELECTION  CASES. 

J.  S.  B.  Boone,  United  States  supervisor  at  Depot  box,  testifies  that 
there  were  30  voters  at  that  precinct  deprived  of  the  right  of  voting  be- 
cause thev  were  not  registered.     (See  Eecord,  page  36.) 

E.  A.  Albritton,  United  States  supervisor  at  Stewart's  voting  place, 
De  Soto  County,  testifies  that  there  were  ten  who  were  refused  the  right 
to  vote  because  they  were  not  registered,  two  of  whom  were  Democrats, 
the  others  Republicans.     (See  Record,  page  39.) 

T.  J.  East,  United  States  supervisor  at  Love's  Station  precinct,  De 
Soto  County,  testifies  that  there  were  15  persons  refused  the  right  to 
vote  at  that  precinct  because  of  non-registration ;  about  three-fourths 
were  colored,  one  fourth  white;  that  the  ballot-box  was  taken  at  dinner 
time  out  of  his  sight  to  Mr.  Love's  house,  250  yards  away  from  the  vot- 
ing place.    (See  Record,  page  40.) 

B.  F.  Bailey,  United  States  supervisor  for  Loaisburg  precinct,  De 
Soto  County,  testifies  that  the  board  adjourned  at  noon  for  an  hour,  and 
about  an  hour  after,  the  polls  closed.  He  objected  to  the  adjournment, 
but  they  overruled  him ;  that  there  were  12  persons  refused  the  right 
to  vote  because  they  were  not  registered ;  that  he  is  a  Greenbacker  in 
politics.     (See  Record,  page  42.) 

LA  FAYETTE   COUNTY. 

C.  E.  Porter,  United  States  supervisor  at  Abbeville  precinct,  testifies 
that  36  persons  were  refused  the  right  to  vote ;  they  were  all  Republic- 
ans.   (See  Record,  page  100.) 

B.  P.  Scruggs  testifies  that  he  was  United  States  deputy  marshal  on 
the  2d  of  November,  1880 ;  that  he  lives  in  Oxford,  State  of  Missis- 
sippi ;  that  he  was  present  at  the  election  held  there  on  that  day ;  that 
■within  twenty  steps  from  the  entrance  of  the  court  house,  where  the 
voting  was  being  carried  on,  Mr.  Keyes,  a  prominent  Democrat  of  that 
place,  and  a  member  of  the  board  of  aldermen,  was  in  charge  of  a  can- 
non which  was  being  fired,  and  that  the  witness  protested  against  the 
firing  of  it ;  that  he  was  told  by  Mr.  Keyes  that  he  had  orders  to  fire 
it ;  that  it  was  none  of  his  business  who  gave  him  such  orders  ;  that 
they  continued  to  fire  the  cannon  until  late  in  the  afternoon ;  that  the 
cannon  was  a  regular  six-pound  field-piece.  Witness  also  testifies  that 
the  Republicans  were  prevented  from  celebrating  the  victory  gained  by 
them  because  they  were  told  by  two  prominent  Democrats,  Mr.  Craw- 
ford and  Mr.  Skipwith,  in  the  presence  of  Mr.  Baker,  chairman  of  the 
Democratic  county  central  committee,  that  "  they  might  have  the  right 
to  do  so,  but  they  did  not  have  the  might,"  and  to  prevent  a  bloody 
collision,  they  abandoned  it.     (See  Record,  pages  51,  52,  53,  54,  55.) 

MARSHALL  COUNTY. 

Robert  Cunningham,  supervisor  of  election  for  Chulahoma  precinct, 
testifies  that  the  inspectors  of  election  refused  to  let  him  act  as  United 
States  supervisor  at  that  poll,  and  excluded  him  from  the  box.  (See 
Record,  pages  80  to  91,  inclusive.) 

John  S.  Benton  testifies  that  he  was  acting  United  States  supervisor 
of  election  at  Holly  Springs  box ;  that  he  canvassed  and  kept  a  com- 
plete list  of  the  voters  as  they  voted,  and  that  it  did  not  agree  within 
60  with  the  list  kept  by  the  clerks  of  election,  his  count  giving  to 
Buchanan  119  majority,  while  the  count  of  the  clerk  of  election  gave  to 
Buchanan  but  69  majority.     (See  Record,  pages  75-79.) 

Mr.  E.  J.  Wilkersou  testi^es  that  he  was  United  States  supervisor 


BUCHANAN    VS.    MANNING.  293 

of  election  at  East  Holly  Spriugs  box ;  that  about  6  o'clock  he  stepped 
out  of  the  hall  for  a  moment  where  the  voting  was  being  done,  and 
when  he  returned  he  found  that  10  or  15  ballots  had  been  added  to  his 
list  that  he  was  keeping  by  some  one  ;  that  there  were  60  more  ballots 
counted  out  of  the  box  than  there  were  persons  on  his  tally-list;  that 
the  door  was  locked  and  no  one  was  permitted  to  be  present  during  the 
count,  and  he  was  not  permitted  to  be  in  the  room ;  that  there  were 
about  30  persons  refused  the  right  to  vote  because  they  were  not  regis- 
tered ;  that  he  did  not  see  anything  wrong  during  the  voting,  and  is 
not  able  to  account  for  the  discrepancy ;  that  he  watched  the  election 
as  close  as  a  hawk  ever  watched  a  chicken.  (See  Record,  pages  91  to 
93.) 

Benjamin  J.  Jameson  was  United  States  supervisor  of  election  at 
Wall  Hill  j)recinct.  He  testifies  that  there  were  27  voters  refused  the 
right  to  vote  because  they  were  not  registered.  (See  Record,  pages 
94-95.) 

Charles  B.  Hardy,  United  States  supervisor  of  election  at  Byhalia 
precinct,  testifies  that  there  were  29  persons  refused  the  right  to  vote, 
27  of  whom  were  colored  persons;  were  refused  for  the  reason  that 
their  names  were  not  on  the  poll-book.  He  knew  personally  23  of 
them  ;  they  were  Republicans.  He  testifies  further  that  one  Mr.  Flow, 
who  M  as  a  Democratic  inspector,  was  guilty  of  stuffing  the  ballot-box 
by  refusing  to  put  a  ballot  into  the  box  offered  by  one  man,  taking  one 
out  of  his  pocket  and  substituting  it  for  it,  and  in  various  other  ways 
taniperiug  with  the  ballots.  (See  nis  testimony  on  pages  94  to  99,  in- 
clusive.) 

Thomas  Mull,  who  was  United  States  supervisor  of  election  at  Mount 
Pleasant  precinct,  Marshall  County,  testifies  that  there  were  17  persons 
who  offered  to  vote  whose  votes  were  refused — 14  blacks  and  3  whites. 
(See  Record,  page  109.) 

Thomas  F.  Briggs,  United  States  supervisor  of  election  at  Early 
Grove  precinct,  testifies  that  there  were  7  who  offered  to  vote  and  were 
refused  because  their  names  could  not  be  found  on  the  poll-book  ;  they 
were  colored  men  and  Republicans  who  claimed  to  have  registered.  He 
is  a  Greenbacker  in  politics.     (See  Record,  page  111.) 

J.  A.  Austin,  United  States  supervisor  of  election  at  Lane's  Hill  pre- 
cinct, Marshall  County,  testifies  that  there  were  12  persons  refused  the 
right  to  vote ;  that  they  were  all  black  but  two.  Mr.  Austin  was  a 
Greenbacker.     (See  Record,  page  126.) 

PANOLA  COUNTY. 

John  Fowler,  United  States  Supervisor  of  election  at  Benson's  Mill, 
testifies  that  the  election  was  fairly  held.     (See  Record,  page  139.) 

W.  W.  Perkins,  United  States  supervisor  of  election  at  Batesville 
precinct,  testifies  that  the  voting  was  fair,  free,  and  undisturbed;  that 
the  counting  was  fair  and  correct.     (See  Record,  page  140.) 

D.  F.  Floyd,  United  States  supervisor  of  election  at  Pleasant  Grove 
precinct,  testifies  that  the  election  was  fairly  held.  (See  Record,  page 
145.) 

P.  Lanier,  United  States  supervisor  of  election  at  Pleasant  Mount 
precinct,  Panola  County,  testifies  that  the  election  was  conducted  fairly. 
(See  Record,  page  151.) 

J.  A.  Small,  United  States  supervisor  of  election  at  Sardis  precinct, 
Panola  County,  testifies  that  there  were  13  persons  who  were  refused 


294  DIGEST    OF    ELECTION   CASES. 

the  right  to  vote  on  account  of  their  not  having  registered.  These  were 
Republicans.     (See  Record,  page  157.) 

W.  A.  Jones,  United  States  supervisor  of  elections  at  Como  precinct, 
Panola  County,  testifies  that  there  were  23  refused  the  right  to  vote 
because  their  names  were  not  registered.  Most  of  these  said  they  were 
Republicans.    (See  Record,  page  158.) 

P.  H.  Lanier,  United  States  supervisor  of  elections  at  Pleasant  Mount 
precinct,  Panola  County,  testifies  that  there  were  51  Republican  tickets, 
17  Democractic  tickets,'  and  two  Greenback  tickets  thrown  out  on  the 
ground  that  they  were  defaced  so  that  they  could  be  distinguished 
from  the  others.  Some  of  them  were  torn  on  the  end,  some  on  the  side  j 
some  were  blotted ;  some  had  little  white  specks  on  them,  some  little 
black  specks.  They  were  put  into  a  small  box  and  nailed  up,  and  put 
into  a  ballot  box ;  the  ballot-box  was  sealed,  and  both  boxes  sent  to 
the  court-house.     (See  Record,  page  170.) 

G.  P.  Carrington,  United  States  supervisor  of  elections  at  Senetobia 
precinct,  testifies  that  the  election  was  fairly  conducted.  (See  Record, 
page  176.) 

TATE  COUNTY. 

R.  p.  Powell,  United  States  supervisor  of  elections  at  Cold  Water 
precinct,  testifies  that  there  were  about  21  persons  who  were  refused 
the  right  to  vote  because  their  names  did  not  appear  on  the  poll-book. 
About  16  of  them  were  Republicans,  and  he  thinks  2  were  Green- 
backers.     (See  Record,  page  177.) 

W.  C.  Briggs,  United  States  supervisor  of  elections  at  Looxahoma 
precinct,  Tate  County,  testifies  that  the  election  was  fairly  conducted. 
(See  Record,  page  179.) 

TALLAHATCHIE  COUNTY. 

R.  J.  Littlewort,  United  States  supervisor  of  elections  at  New  Hope 
precinct,  testifies  that  the  election  was  fairly  conducted.  (See  Record, 
pages  194-195.) 

We  have  given  an  epitome  of  the  testimony  of  the  United  States  su- 
pervisors of  electioDS.  These  men  were  appointed  at  the  request  of  the 
prominent  Republicans  and  Greenbackers  of  the  district.  It  is  fair  to 
l)resume  that  all  of  the  active  frauds  committed  in  the  district  would 
come  under  their  notice,  and  that  they  would  be  able  in  their  testimony 
to  expose  all  crimes  committed.  The  labor  imposed  upon  the  commit- 
tee may  have  caused  it  to  overlook  a  few  of  the  other  active  frauds 
complained  of;  but  it  is  believed  that  the  foregoing  summary  embraces 
all  that  is  important  to  be  noticed.  It  is  evident  from  the  testimony 
that  some  of  the  precincts  before  alluded  to  must  be  thrown  out. 
Those  that  we  decide  to  throw  out  will  be  found  at  another  place  in 
this  report. 

CONSPIRACY. 

It  has  been  strenuously  contended  that  there  is  some  evidence  uncon- 
tradicted and  which  tends  to  establish  a  conspiracy  among  the  Demo- 
crats of  the  district,  which  resulted  in  the  returning  of  the  vote  as  here- 
tofore given  for  Manning,  and  the  suppression  of  the  true  vote  given 
for  the  contestant  and  Mr.  Harris,  the  Greenback  candidate.  This  is 
founded  upon  the  fact  that  the  colored  vote  in  the  district  exceeded 


BUCHANAN    VS.    MANNING.  295 

the  white  vote,  and  that  it  was  solidly  Republican,  and  that  it  was 
<?ast,  or  ought  to  have  been  cast,  for  Mr.  Buchanan ;  that  the  white 
vote  was  divided  between  the  sitting:  member  and  the  Greenback  can- 
didate, Mr.  Harris.  To  establish  this,  census  tables  have  been  re- 
sorted to,  and  other  evidence  has  been  introduced  tending  to  show 
that  there  was  a  general  turnout  of  Republicans  at  the  election,  while 
there  was  much  indifference  on  the  part  of  Democratic  voters. 

The  case  of  Spencer  vs.  Morey,  decided  in  Forty-fourth  Congress, 
Miscellaneous  Cases,  Vol.  V,  p.  43S,  adverted  to  by  contestant  in  his 
"brief,  cannot  be  regarded  by  us  as  an  authority  in  this  or  any  other  case. 
So  far  as  we  have  been  able  to  study  it,  it  stands  alone  in  the  line  of 
■contested-election  cases.  We  do  not  believe  that  proof  of  one  corrupted 
vote  going  into  a  ballot-box  is  like  "  a  drop  of  poisou  in  a  bowl  of  water, 
which  contaminates  the  whole  of  it,  and  cannot  be  separated  from  that 
Avhich  remains  pure." 

The  duty  of  the  House  is  to  separate  the  honest  from  the  dishonest 
vote ;  to  purge  all  ballot-boxes  of  illegal  votes ;  to  administer  a  rebuke 
to  the  voters  of  any  precinct  who  permit  the  voice  of  the  people  to  be 
stifled  or  suppressed ;  and  to  enable  the  House  to  do  this  a  contestant 
should  produce  testimony  of  specific  acts  in  order  to  show  the  wrong 
which  he  complains  of.  It  cannot  be  done  by  general,  vague,  and  un- 
certain allegations  and  charges.  There  is  some  proof  introduced  to  es- 
tablish these  various  points,  but  it  is  very  general,  and  consists  largely 
of  the  opinion  of  witnesses,  and  is  not  of  such  a  character  that  the  com- 
mittee feel  justified  in  finding  that  a  general  conspiracy  against  the 
ballot-box  was  practiced.  It  seems  to  your  committee  that  if  any  such 
practice  prevailed  the  United  States  supervisors  appointed  for  the  pur- 
pose of  preventing  such  frauds  could  and  would  have  given  information 
whereby  they  could  have  been  specifically  proven. 

Your  committee  have  not  hesitated  to  recommend  to  the  House  the 
throwing  out  of  all  the  boxes  where  frauds,  intimidation,  or  ballot-box 
stuffing  have  been  proven,  but  it  would  be  unsafe  to  assume  from  the 
testimony  in  this  case  that  other  frauds  had  been  committed  by  the 
election  officers  not  specifically  shown  or  proven  in  any  tangible  or  defi- 
nite manner. 

rLLITERATE  ELECTION  OFFICEES. 

There  is  no  doubt  in  our  minds,  from  the  evidence  in  this  case,  that 
many  of  the  Republican  precinct  inspectors  were  appointed  as  such 
because  they  could  neither  read  nor  write.  This  is,  in  our  judgment, 
&  clear  abuse  of  the  law,  and  without  the  supervisors'  law,  which  ena- 
bles the  opposing  party  to  have  men  of  their  own  selection  to  guard  the 
])olls  as  supervisors,  we  would  be  strongly  inclined  to  apply  a  corrective 
for  this  manifest  abuse  of  power. 

With  tickets  exactly  similar  in  all  respects,  or  as  nearly  so  as  they 
•can  be  printed,  and  on  the  same  kind  of  paper,  it  would  not  be  a  hard 
task  for  election  oflicers,  if  they  were  so  disposed,  to  cheat  an  illiterate 
man,  who  could  neither  read  nor  write,  both  in  the  vote  and  in  the 
couut.  All  good  peoi)le  ought  to  discountenance  and  cry  down  evil 
practices  of  this  kind.  We  indulge  the  hope  that  it  will  not  be  repeated 
in  the  future. 

REGISTRATION  LAW. 

It  appears  in  the  evidence  that  very  many  electors  in  the  various 


296  DIGEST    OF    ELECTION    CASES. 

counties  of  this  district  were  deprived  of  the  right  of  voting  because 
they  were  not  registered.  The  registry  law  of  Mississippi  i)rovides  the 
manner  in  which  registration  shall  be  made.  An  unlawful  refusal  on 
the  part  of  the  registration  officers  to  register  a  qualified  elector  is  a^ 
good  ground  for  contest;  but,  in  order  tq  make  it  available,  the  proof 
should  clearly  show  the  name  of  the  elector  who  off"ered  to  register;: 
that  he  was  a  duly  qualified  voter,  and  the  reason  why  the  officer  re- 
fused to  register  him,  and,  under  the  statutes  of  the  United  States,  if 
he  offered  to  perform  all  that  was  necessary  to  be  done  by  him  to  regis- 
ter, and  was  refused,  and  afterwards  presented  himself  at  the  proper 
voting  place  and  offered  to  vote  and  again  offered  to  perform  everything; 
required  of  him  under  the  law,  and  his  vote  was  still  refused,  it  would 
be  the  duty  of  the  House  to  see  to  it  that  he  is  not  deprived  of  his  right 
to  participate  in  the  choice  of  his  officers. 

Unfortunately  in  this  case  the  proof  falls  far  short  of  that  which  i» 
required  to  enable  the  House  to  apply  the  proper  remedy.  That  there 
were  many  instances  in  which  the  officers  of  the  registration  arbitrarily 
refused  to  do  their  duty  is  apparent.  That  many  electors  were  de- 
prived of  their  right  to  vote  in  consequense  of  this  action  is  also  appar- 
ent; but  in  going  through  the  testimony  in  this  case,  the  number  thus- 
refused  registration,  and  refused  the  right  to  vote,  if  added  to  contest- 
ant's vote,  would  not  elect  him.  Neither  is  it  shown  sufficiently  for 
whom  the  non-registered  voters  would  have  voted  had  they  been  allowed 
that  right. 

CHANGE  OF  POLLING  PLACES. 

There  is  some  evidence  tending  to  establish  the  fact  that  many  of  the 
voting  places  were  changed  just  prior  to  the  election,  and  that  much 
confusion  was  thereby  caused  among  the  voters.  Many  of  them  were 
not  aware  of  the  change,  and  in  some  instances  they  did  not  know 
where  the  new  polling  places  were  established.  Just  how  far  this- 
affected  the  result  of  the  election  we  are  unable  to  tell  from  the  evi- 
dence.  We  can,  however,  readily  imagine  how  a  resort  to  changing^ 
the  polling  places  just  before  an  election  in  a  county  would  cause  such 
confusion  and  unfairness  as  would  defeat  the  popular  expression  of  the 
will  of  the  people  through  the  ballot-box.  The  evidence  in  this  case 
fails  to  establish  the  existence  of  such  a  state  of  affairs  that  we  feel 
justified  in  interfering  with  the  election  for  this  cause. 

REJECTED  POLLS. 

De  Soto  County. 

Manning.  Bnchanan. 

Horn  Lake  precinct 205  130 

Pleasant  Hill  precinct 169  75 

Oak  Grove  precinct 131  98 

Marshall  County. 

Chulahoma  precinct 241  271 

East  Holly  Springs  precinct 292  220 

ByhaUa  precinct 218  28^ 

La  Fayette  County. 

North   Oxford  precintil'^^g^l t^3  22$ 

*^  iBoxNo,  2 335  149 


1,994  1,45& 


BUCHANAN   VS.    MANNING  297 

The  aboTe  precincts  are  rejected  because  of  specific  acts  of  fraad^ 
violence,  and  intimidation  having  been  proven. 

At  North  Oxford  precinct  the  cout^istee's  party  friends,  on  the  day 
of  election,  fired  a  cannon  in  close  proximity  to  the  polls,  and  kept  it 
np  at  intervals  for  quite  a  while.  At  Byhalia  precinct  the  ballot-box 
was  stuffed.  At  the  other  precinct  there  were  irregularities  of  various, 
kinds,  chief  among  which  was  the  exclusion  of  the  United  States  su- 
pervisor from  the  polls  and  the  counting  of  the  votes. 

DONNELLY-WASHBUEN  CASE. 

We  are  not  willing  to  go  as  far  in  this  case  as  the  majority  of  the 
committee  did  In  the  Forty-sixth  Congress  in  the  case  of  Donnelly  vs. 
Washburn.    It  was  there  held — 

The  very  fact  that  in  these  seven  precincts  Mr.  Donnelly  had  been  deprived  by  th& 
city  conncil  of  Minneapolis  of  all  representation  among  the  officers  conducting  the  election 
is,  in  itself,  a  very  strong  proof  of  conspriacy  and  fraud. 

We  may  remark  that  there  is  abundance  of  testimony  in  this  case 
showing  that  nearly  one-half  of  the  polls  in  some  of  the  counties  were 
under  the  exclusive  control  of  the  party  friends  of  the  contestee  ;  and 
it  is  stoutly  maintained  by  the  contestant  that  the  refusal  to  register 
qualified  Eepublican  voters,  and  that  the  appointment  of  incompetent 
Republican  election  precinct  officers  at  other  polling  places,  and  vari- 
ous other  acts  and  omissions  on  the  part  of  the  partisan  friends  of  the 
contestee,  taken  in  connection  with  the  fact  that  at  many  of  the  precincts 
only  Democrats  were  appointed  election  officers,  afford  a  strong  reasoa 
why  the  rule  laid  down  in  the  Washburn-Donnelly  case  should  apply 
in  this. 

The  appointment  of  managers  of  election,  in  fairness  and  common 
decency,  should  be  made  from  opposite  political  parties.  A  refusal  ta 
do  so  in  the  face  of  a  statute  directing  it  to  be  done  may  in  some  in- 
stances be  evidence  of  fraud,  and  it  might  form  an  important  link  iik 
the  chain  of  circumstances  tending  to  establish  a  conspiracy. 

We  are  not  satisfied  that  the  evidence  in  this  case  establishes  such  a 
conspiracy. 

A  word  of  explanation.  When  the  Committee  on  Elections  decided 
this  case  in  committee  there  were  several  members  absent,  as  the  record 
of  the  committee  will  show.  When  the  report  was  signed  a  majority  of 
the  committee  agreed  to  the  minority  report. 

We  therefore  recommend  the  adoption  of  the  following  resolution : 

Besolved,  That  the  contestant  have  leave  to  withdraw  his  papers 
without  prejudice. 

We  concur  in  the  conclusion  reached  by  this  report. 

W.  H.  CALKINS. 
GEO.  C.  HAZELTON. 
JNO.  T.  WAIT. 
S.  H.  MILLER. 

F.  E.  BELTZHOOVER. 

G.  ATHERTON. 
S.  W.  MOULTON. 
L.  H.  DAVIS. 


298  DIGEST    OF    ELECTION    CASES. 

Buchanan  vs.  Manning. 

Mr.  W.  G.  Thompson,  from  the  Committee  on  Elections,  submitted  the 

following 

MINORITY    REPORT: 

The  second  Congressional  district  is  composed  of  the  counties  of  De 
Soto,  Marshall,  Tate,  Panola,  La  Fayette.  Tallahatchie,  Yalobusha, 
Benton,  Tippah,  and  Union. 

The  election  for  members  of  Congress  was  held  on  the  2d  day  of  No- 
vember, 1880,  and  the  candidates  for  Congress  were  Thomas  W.  Harris 
(Greenbacker),  George  M.  Buchanan  (Republican),  and  Van  H.  Manning 
^Democrat). 

The  motion  of  contestant,  in  which  he  set  out  his  grounds  of  contest, 
^nd  the  reply  of  contestee  thereto,  are  as  follows,  to  wit : 

Notice  of  contest. 

Holly  Springs,  Miss.,  November  23,  laSO. 
dol.  Van  H.  Manning  : 

You  will  take  notice  that  it  is  my  intention  to  contest  your  election  as  a  member  of 
Congress  for  the  second  district  of  Mississippi,  as  a  result  of  the  election  held  for  the 
■election  of  a  member  of  Congress  on  Tuesday,  November  2,  1880,  in  said  district,  and 
«n  the  following  grounds : 

1st.  That  in  a  portion  of  the  counties  comprising  said  district  such  persons  were  not 
appointed,  neither  was  such  representation  given  to  the  different  political  parties  in 
«aid  counties  in  the  appointments  of  county  commissioners  of  election  as  was  designed 
And  required  by  law. 

2d.  That  in  a  portion  of  the  counties  comprising  said  district  election  districts  are 
abolished  and  other  election  districts  established  without  complying  with  and  in  vio- 
lation of  law. 

3d.  That  in  a  portion  of  the  counties  comprising  said  district  the  registration  of 
■voters  was  not  conducted  as  required  by  law,  thereby  depriving  a  large  number  of 
persons  (of  lawful  right)  of  the  privilege  of  registering  and  voting. 

4th.  That  at  a  large  number  of  voting  places  in  said  district — in  the  appointment 
of  inspectors  of  election — such  persons  were  not  appointed,  nor  was  such  representation 
given  (in  making  said  appointments)  to  the  different  political  parties,  as  was  designed 
and  required  by  law. 

5th.  That  in  several  of  the  counties  comprising  said  district  a  large  number  of  per- 
sons lawfully  entitled  to  register  were  refused  registration,  and  that  the  registration 
and  transferring  of  votes  was  discontinued  many  days  prior  to  the  time  contemplated 
by  law,  thereby  depriving  a  large  number  of  persons  lawfully  entitled  to  register  (or 
transfer)  from  the  right  of  registering  or  transferring  and  voting;  and  that  in  a  por 
tion  of  said  counties  the  registration  books  were  for  a  time  removed  from  the  place 
-designated  by  law  for  their  keeping,  thereby  depriving  a  large  number  of  persons  (of 
lawful  right)  of  the  privilege  of  registering  (or  transferring)  and  voting. 

6th.  That  at  a  large  number  of  voting  places  in  said  district  many  lawful  voters  were 
not  permitted  to  vote,  their  votes  having  been  tendered  and  rejected  by  the  inspectors 
•of  election;  that  such  unlawful  interference  and  hinderance  was  permitted  and  prac- 
ticed (such  as  is  specially  forbidden  by  law)  as  to  obstruct  and  confuse  the  voters  in 
the  act  of  voting,  or  to  deceive  and  prevent  a  large  number  of  \iOter8  from  delivering 
their  ballots  at  the  proper  voting  places ;  that  a  large  number  of  persons  were  per- 
mitted to  vote  for  you  who  had  uo  legal  right  to  vote. 

7th.  That  at  many  of  tne  voting  places  United  States  supervisors  of  election  were 
not  permitted  to  exercise  the  duties  of  their  office,  being  prevented  therefrom  by  the 
unlawful  interference  of  other  officers  of  election,  or  from  other  sources,  in  violation 
•of  law,  and  to  such  an  extent  as  to  prevent  their  ascertaining  the  result  of  the  elec- 
tion and  from  performing  other  duties  required  of  them  by  law ;  that  no  separate  lists 
•of  the  names  of  voters  were  kept  by  the  clerks  of  election,  as  was  required  by  law ; 
that  the  poles  were  not  opened  at  the  time  required  by  law,  were  not  kept  open  con- 
tinuously from  9  a.  ra.  till  6  p.  m.,  as  required  by  law,  and  that  upon  the  closing  of 
the  polls  the  counting  of  the  vote  and  making  up  of  returns  was  not  done  at  the  vot- 
ing places  nor  at  the  time  required  by  law. 

otu.  That  at  many  of  the  voting  places  ballots  were  received  and  counted  that  were 
not  lawful  ballots  in  form  aud  i)rint;  thit  inspectors  of  election  rejected  and  refused 


BUCHANAN    VS.    MANNING.  299 

to  count  ballots  that  were  lawful  after  the  same  had  been  lawfully  deposited  in  the 
ballot-boxes  ;  that  inspectors  of  election  (with  knowledge  of  the  fact  at  the  time)  pre- 
mitted  ballots  to  be  voted  that  were  not  lawful  ballots ;  that  during  the  hours  pre- 
scribed by  law  for  voting  voters  were  harassed  and  disturbed  in  such  a  manner  as  to 
prevent  their  voting  in  a  free,  fair,  untrammeled,  and  peaceable  manner. 

9th.  That  the  names  of  a  large  number  of  legally  registered  voters  were  not  placed 
upon  the  poll  books  (by  the  officers  whose  duty  it  was  to  place  said  names  on  said 
books)  used  at  many  of  the  voting  places,  and  that  in  consequence  thereof  said  legally 
registered  voters  were  not  permitted  to  vote,  their  votes  being  refused  by  the  inspect- 
ors of  elections,  said  inspectors  giving  as  a  reason  for  such  refusal  to  receive  such 
votes  that  the  names  of  the  parties  applying  to  vote  were  not  on  the  poll-books. 

10th.  That  the  entire  vote  polled  and  counted  and  returned  at  a  part  of  said  voting 
places  was  unlawfully  rejected  and  thrown  out  (and  not  counted)  by  the  county  com- 
missioners of  election  on  making  up  their  returns  of  the  total  vote  of  the  county. 

11th.  That  at  a  portion  of  the  voting  places  the  ballot-boxes  were  not  opened  in 
public  when  the  poles  closed,  nor  was  the  vote  counted  in  public,  nor  at  the  time  re- 
quired by  law  to  be  counted;  that  in  making  up  the  returns  a  large  number  of  ballots 
were  counted  as  having  been  cast  for  you,  when  in  truth  and  in  fact  such  ballots  were 
cast  for  other  persons,  or  were  ballots  placed  in  the  boxes  in  a  manner  not  authorized 
by  law. 

12th.  That  at  many  of  the  voting  places  a  much  larger  number  of  votes  were  re- 
turned as  having  been  polled  than  were  actually  polled  at  said  voting  places ;  that  at 
many  of  the  voting  places  the  poll-books  for  said  places  unlawfully  contained  the 
names  of  a  large  number  of  voters,  which  voters  had  no  right  to  a  vote  at  such  voting 
places,  but  resided  in  other  election  districts,  and  that  the  names  of  said  voters  also 
appeared  on  the  poll-books  of  the  voting  places  of  election  districts  to  which  said 
voters  of  right  belonged. 

13th.  That  at  many  voting  places  the  election  was  conducted  in  many  respects  in 
utter  disregard  of  law  and  the  rights  of  voters  ;  that  the  registration  books  and  the 
poll  books  of  a  portion  of  the  counties  and  election  districts  in  said  district  were  at 
divers  and  sundry  times  not  in  the  custody  and  keeping  of  the  proper  lawfully  con- 
stituted officers,  but  were  on  divers  and  sundry  occasions  in  the  care  and  possession 
of  persons  not  lawfully  entitled  to  such  care  and  possession  ;  that  at  a  portion  of  the 
voting  places  lawful  ballots  that  were  cast  for  me  were  not  counted  forme,  but  were 
(unlawfully)  counted  as  having  been  cast  for  you,  and  were  so  returned  by  the  officers 
of  election ;  that  there  were  a  greater  number  of  legal  voters  of  said  district  who 
voted  (or  who  offered  to  register  and  vote),  and  who  were  unlawfully  prevented  there- 
from, who  desired  me  as  their  Representative  in  Congress  than  there  were  who  de- 
sired you  as  their  Representative  in  Congress  from  said  district. 
Very  respectfully, 

GEO.  M.  BUCHANAN. 


Coittestee's  answer. 

Capt.  Geo.  M.  Buchanan: 

SiK  :  I  am  in  receipt  of  a  notice  from  you,  dated  November  23,  1880,  of  your  inten- 
tion to  contest  my  election  as  a  member  of  Congress  of  the  2d  district  of  Mississippi,  as 
a  result  of  the  election  held  on  the  2d  November  last. 

To  said  notice  I  make  the  following  answers,  to  wit : 

First  answer.  Protesting  against  the  truth  of  the  allegations  in  said  notice,  I  object 
and  say  that  said  notice  is  so  insufficient  and  defective  that  I  need  not  deny  or  admit 
the  allegation  thereof,  for  the  reasons,  to  wit,  said  notice  does  not  specify  particularly 
the  grounds  upon  which  you  rely,  and  gives  no  reason  for  failing  so  to  do. 

2d.  The  allegations  are  only  conclusions  of  law  and  general  averments  of  wrong- 
doing in  some  undelined  porf  ions  of  the  district,  by  unnamed  election  officials  of  pre- 
cincts not  specified,  in  unnamed  counties,  or  by  persons  not  named  or  described,  and 
in  places  and  by  means  not  specified,  and  in  violation  of  laws  and  the  rights  of  others 
not  designated. 

3d.  Your  allegations  are  so  vague  and  uncertain  that  I  am  not  informed  as  to  the 
persons  or  officials  whom  you  accuse  of  crime,  nor  where  committed,  nor  do  you  aver 
that  such  wrong  doings  were  not  instigated  by  you  or  that  they  were  known  to  or 
acquiesced  in  by  me,  or  that  the  result  of  the  election  was  changed  by  reason  of  the 
matters  set  forth. 

Second  answer.  Without  waiviu<|  any  objection  to  the  manifold  vital  defects  of  said 
notice,  but  reserving  all  benefit  and  advantage  thereof,!  deny  each  and  every  ground 
of  contest  set  forth  in  said  notice,  and  deny  each  and  every  allegation  therein  con- 
tained, and  aver  that  throughout  said  Congressional  district  a  free  and  fair  election 


300  DIGEST  OF  ELECTION  CASES. 

was  held  in  all  respects,  except  that  in  the  county  of  Marshall  and  other  counties,  at 
every  precinct,  divers  colored  voters  who  wished  to  vote  for  me  for  member  of  Congress 
were  deterred  and  prevented  from  doing  so  by  reason  of  the  threats  of  personal  vio- 
lence and  other  means  of  intimidation  used  and  employed  by  other  colored  people,  the 
neighbors  of  such  voters  (the  names  of  all  of  whom  are  unknown  to  me),  being  insti- 
gated thereto  by  those  that  advocated  your  election,  whereby  I  received  less  votes  by 
one  thousand  or  more  than  I  otherwise  would ;  and  all  such  voters  by  means  of  such 
intimidations  were  induced,  contrary  to  their  wishes,  not  to  vote  at  all,  or  to  vote  for 
you,  and  thereby  the  great  majority  of  votes  that  I  should  have  received  more  than 
you  at  said  election  was  reduced  to  the  number  of  about  five  thousand  two  hundred 
and  fifty. 

Third  answer,  I  charge  and  aver  that  you  have  made  the  wholesale  charges  of  all 
kinds  of  crimes  and  irregularities  contained  in  your  said  notice  without  specifications 
of  persons  or  places,  not  because  you  had  reason  to  believe  that  any  one  of  them  had 
been  committed  to  your  injury,  but  with  the  deliberate  purpose  to  evade  the  limita- 
tion of  the  statute  and  to  speculate  upon  any  future  discoveries  of  evidence,  and  so 
you  have  made  unlawful,  vexatious,  and  fraudulent  use  of  the  notice  and  process 
authorized  by  statute,  and  the  same  should  be  quashed  and  dismissed. 
Respectfully,  yours, 

VAN  H.  MANNING. 

Washington,  December  20,  1880. 

It  will  be  observed  that  in  the  beginning  the  contestee  claimed  that 
the  notice  of  contest  was  insufficient,  and  has  insisted  for  that  cause 
that  the  case  should  be  dismissed. 

In  whatever  manner  any  failure  of  proper  notice  might  affect  the  right 
of  contestant  in  this  case  (for  insufficiency  of  pleading),  if  upon  exami- 
nation of  the  facts  in  the  case  it  appear  that  the  sitting  member  is  not 
entitled  to  a  seat  it  is  the  duty  of  the  committee  to  so  report. 

It  appears  that  the  race  in  this  district  was  strongly  contested  by 
three  candidates,  representatives  of  the  three  political  parties  of  the 
country. 

ORGANIZATION   OF   PARTIES. 

We  will  first  notice  the  evidence  bearing  on  the  organization  of  each 
of  the  parties  in  the  district  at  the  time  of  this  election. 

We  would  prefer  to  eliminate  from  our  report  all  reference  to  the 
organization  of  voters  by  colors^  but  as  this  question  is  fully  developed 
by  evidence  we  cannot  well  avoid  it. 

The  contestee  in  his  answer  evidently  relies  upon  the  support  of  a 
large  number  of  colored  voters  to  bear  out  his  right  to  a  seat,  and  it  is 
in  his  answer  to  notice  of  contest  that  the  division  of  electors  by  colors 
is  first  referred  to  in  the  case. 

We  have  in  evidence  conflicting  statements  as  to  the  number  of  voters 
in  the  district. 

On  page  393  of  Record  the  contestee  places  in  evidence  a  recent  State 
census  of  Mississippi,  and  on  page  199  is  found  the  United  States  census 
for  1880,  placed  in  evidence  by  the  contestant. 

Taking  the  latter^  and  applying  the  general  rule  of  one  voter  to  every 
five  inhabitants,  there  are  19,743  colored  voters  and  17,155  white  voters 
in  the  district,  showing  a  majority  of  colored  voters  of  some  2,600  while 
the  former  shows  that  there  are  19,780  white  voters  and  18,998  colored 
voters  in  the  district.  We  have  examined  the  facts  and  comparisons 
made  in  contestant's  brief  (page  50)  in  relation  to  the  State  census,  and 
are  disposed  to  be  governed  by  the  United  States  census.  As  to  man- 
ner and  spirit  of  the  canvass,  it  is  the  universal  testimony  that  each 
party  was  active  and  zealous  in  its  efforts  to  obtain  a  full  vote,  and 
that  the  canvass  was  conducted  with  an  industry  on  the  part  of  all 
three  parties  seldom  developed  in  election  cases.    That  each  party  made 


BUCHANAN    VS.    MANNING.  301 

most  extraordinary  efforts  to  bring  every  possible  voter  to  the  polls  is 
shown  all  through  the  evidence.  And  for  that  reason  we  do  not  deem 
it  necessary  to  refer  to  it  in  detail.  Nor  is  the  manner  in  which  the 
voters  were  organized  and  came  to  the  ])olls  less  fully  shown.  Espe- 
cially is  it  developed  in  the  evidence  of  witnesses  introduced  by  contest- 
ant upon  this  point. 

We  are  disposed  to  give  more  than  ordinary  weight  to  the  evidence  of 
witnesses  who  (politically)  are  not  supposed  to  have  any  special  interest 
in  the  result  of  this  controversy.  We  therefore  submit  the  evidence  as 
follows,  which  is  fullv  corroborated  throughout  the  testimony.  See 
Record,  p.  19,  q.  9 ;  i>?22,  q.  6  and  7;  p.  26,  q.  8;  p.  23,  q.  3;  p.  35,  q.  3  ; 
p.  40,  q.  3 ;  p.  464,  q.  16 ;  p.  445,  q.  405  ;  p.  474,  witness  Settle ;  p.  476, 
witness  Matthews;  p.  51,  q.  3;  p.  210,  witness  Nunnally;  p.  189,  q.  1; 
p.  185,  q.  5 ;  p.  193,  q.  8  ;  p.  56,  q.  10. 

Page  205 : 

John  S.  Burton,  being  sworn  according  to  law,  testifies  as  follows  : 

Question  1.  You  have  been  heretofore  examined  in  this  case,  have  you  notf — An- 
swer. I  have. 

Q.  2.  State  what  your  personal  relations  are  to  Mr.  George  M.  Buchanan,  the  con- 
testant in  this  case,  and  what  they  were  during  the  canvass  of  1880  :  also  state  your 
connection  with  the  canvass  of  that  period,  and  the  position  that  you  occupied  then 
to  Mr.  Buchanan  in  the  canvass. — A.  I  am  a  close  friend  to  Mr.  Buchanan.  At  the 
commencement  of  the  campaign  I  agreed  to  take  charge  of  his  Congressional  candidacy, 
in  which  I  employed  speakera  in  the  district,  and  employed  speakers  out  of  the  district 
to  come  in  this  district  to  make  speeches  for  him.  And  I  attended  to  the  organiza- 
tion of  clubs  and  to  all  campaign  matters  in  which  he  was  interested. 

Q.  ',i.  State,  as  well  as  you  can,  the  manner  in  which  the  campaign  was  conducted 
throughout  the  district  on  the  part  of  the  Republicans,  giving  the  names  or  numbers 
of  speakers  and  number  of  speeches  made,  as  near  as  you  can.  State  time  of  com- 
mencement of  canvass  ;  also  state  character  of  Democratic  and  Greenback  canvass. — 
A.  Our  campaign  was  conducted  very  actively.  The  canvass  commenced  about  the 
15th  of  July,  1^0.  Capt.  William  Spears,  one  of  the  electors  of  the  State  at  large, 
accompanied  by  Captain  Buchanan,  spoke  at  the  principal  county  seats  in  the  west- 
ern part  of  the  district.  Our  meetings  were  extensively  advertised  and  largely  at- 
tended. They  spoke  in  Tallahatchie,  Panola,  Tate,  De  Soto,  and  Benton  Counties. 
Aboutthe  same  time  Col.  R.W.  Floiruey,  one  of  the  State  electors  at  large,  commenced 
the  canvass  in  the  eastern  part  of  the  district,  speaking  at  New  Albany.  The  Repub- 
lican convention  was  held  at  Oxford,  August  lo,  when  Captain  Buchanan  was  nomi- 
nated. It  was  a  Tery  largely  attended  convention ;  every  county  was  represented  with 
but  one  exception.  On  or  about  the  first  of  September  the  canvass  was  renewed.  Col- 
onel Mister,  elector  for  fifth  district,  J.  T.  Settle,  elector  for  second  district,  and  W^. 
F.  Frazee,  alternate  elector  for  first  district,  all  came  into  this  district  and  keptup 
the  canvass  incessantly  tintil  the  election.  In  addition  to  the  prominent  speakers 
mentioned,  Hon.  James  Hill,  chairman  State  executive  committee.  Col.  Thomas  Hunt, 
United  States  marshal,  and  Maj.  W.  H.  Gibbs,  all  of  the  very  best  order  of  Republican 
speakers,  spent  some  two  weeks  in  canvassing  the  district ;  and,  in  addition.  Captain 
Buchanan  made  speeches  night  and  day  for  the  entire  time,  commencing  about  the 
15th  of  September  and  including  a  day  orso  before  the  election.  In  addition  to  these 
speakers  there  were  local  speakers  constantly  engaged  in  the  canvass  all  the  time  in 
prominent  precincts  in  the  district,  and  the  canvass  was  conducted  with  the  same 
activity  and  industry  on  which  campaigns  were  conducted  while  the  Republican  party 
were  in  power  in  the  State.  No  eftbrt  was  spared  by  myself  or  Captain  Buchanan,  or 
his  friends,  to  see  that  every  vote  in  the  district  was  brought  out.  The  Democrats 
did  not  open  their  campaign  for  some  weeks  after  the  Republicans  commenced,  and  so 
far  as  my  observation  went  their  campaign  was  not  conducted  with  as  much  as  usual 
activity'until  toward  the  close  of  the  canvass.  The  Greenbackers  also  made  a  thor- 
ough and  active  canvass  of  every  part  of  the  district.  As  near  as  I  can  approximate, 
there  were  from  two  hundred  and  fifty  to  three  hundred  Republican  speeches  made 
in  the  district.  I  estimate  this  by  the  number  of  speeches  and  the  time  they  occu- 
pied. 

Page  331 : 

W.  S.  Featherston,  having  been  duly  sworn,  testified  as  follows,  to  wit : 
Interrogatory  1.  How  long  have  you  lived  in  the  State  of  Mississippi  and  the  county 
of  Marshall f    What  official  i)ositions  have  you  held,  if  any? — Answer.  Forty  years 


302  DIGEST  OF  ELECTION  CASES. 

in  the  State  of  Mississippi  and  twenty-three  in  the  county  of  Marshall.     I  have  been 
a  member  of  the  legisfature  and  a  member  of  Congress  in  the  House  of  Eepresent- 

Int.  2.  What  is  your  acquaintance  with  the  people  of  Marshall  County,  extensive 
or  otherwise  ?— A.  My  acquaintance  with  the  people  of  Marshall  County  has  been 
pretty  extensive,  and  is  now. 

Int.  3.  What  is  your  profession  ;  to  which  political  party  do  you  belong,  and  what 
is  your  official  position  in  your  party,  and  what  was  it  during  the  political  campaign 
of  1880?— A.  I  am  a  lawyer  by  profession.  I  am  a  member  of  the  Democratic  party. 
I  am  now,  and  was  during  the  campaign  of  1860,  chairman  of  the  Democratic  execu- 
tive committee  of  Marshall  County. 

Int.  4.  What  was  the  character  of  the  political  contest  of  1880  in  this  Congressional 
district ;  was  it  one  in  which  little  interest  was  manifested  by  both  Kepublican  and 
Democratic  parties,  or  otherwise  ?— A.  It  was  an  interesting  campaign,  and  one  in 
which  both  the  Republican  and  Democratic  and  also  the  Greenback  party  took  con- 
siderable interest,  especially  in  Democratic  and  Republican  parties. 

Int.  5.  What  was  the  character  of  the  Democratic  campaign  of  1880  in  Marshall 
County,  active  or  otherwise  ;  was  or  not  the  Democratic  party  of  the  county  thor- 
onghlv  organized  f  Which  party  made  the  most  active  campaign  f— A.  The  Demo- 
cratic'^campaign  in  Marshall  County  in  1880  was  active  and  enthusiastic.  I  thought 
the  party  was  well  organized.  The  Democratic  party  made  the  most  active  campaign. 
I  am  certain  that  it  did  ;  and  in  every  neighborhood  in  the  county  we  had  every  local 
committee  appointed  that  we  thought  was  necessary  to  organize  the  party  thoroughly 
and  to  bring  out  its  full  vote — such  a  campaign  as  we  have  been  in  the  habit  of  inau- 
gurating in  this  county  for  several  years  past. 

Page  200 : 

Dr.  R.  J.  Lyles,  being  duly  sworn  according  to  law,  testified  as  follows : 

Question  1.  Where  do  you  reside  ?  How  long  have  you  resided  in  Marshall  County  f 
State  yonr  occupation.  Of  what  party  are  you  a  member,  and  to  what  extent  were 
you  engaged  in  the  interest  of  your  party  in  campaign  of  1880  ?  State  to  what  extent 
the  Greenback  party  of  this  county  is  composed  of  white  or  colored  people,  from  which 
party  it  drew  the  most  votes  at  last  election  (Democratic  or  Republican  party),  and 
to  what  extent  from  either. 

(Objected  to  by  the  contesteo  upon  the  ground  that  it  is  not  rebutting  testimony, 
but  original.) 

Answer.  I  reside  at  Watson  P.  O.^  Marshall  County,  Miss. ;  lived  in  this  county 
about  eleven  years ;  am  a  physician  by  occupation.  I  belong  to  the  National  Green- 
back party.  I  took  part  in  the  canvass,  actively  canvassing,  making  speeches  in  this 
county.  The  Greenback  party  in  this  county,  to  my  best  information,  is  comiiosed 
principally  of  the  white  people,  at  least  four-fifths  of  the  Greenback  party. 

Q.  2,  Were  you  not  a  close  personal  friend  of  Col.  T.  W.  Harris,  the  Greenback  can- 
didate for  Congress,  and  did  you  or  not  manage  the  canvass  in  this  county  for  him,  or 
did  you  not  do  it  chiefly  ? 

(Objected  to  on  same  ground  as  to  No.  1.) 

A.  i  am  a  close  personal  friend  of  said  Col.  T.  W.  Harris.  I  took  an  active  part  in 
his  behalf,  and  managed  his  interest  in  the  western  part  of  the  county,  particularly 
that  section  where  I  reside. 

Q.  3.  At  or  about  the  close  of  the  canvass  did  anything  occur  to  induce  you  to  ad- 
vise Colonel  Harris,  the  Greenback  candidate,  to  withdraw  from  the  canvass,  and  did 
you  or  not  so  advise  him  ?  And,  if  so,  state  freely  and  particularly  the  reasons  for  so  ad- 
vising him,  and  from  what  source  you  received  your  information  inducing  you  to  give 
such  advice. — A.  Something  did  occur.  A  short  while  before  the  election,  perhaps  a 
week,  I  had  a  conversation  with  Col.  Van  H.  Manning,  the  candidate  of  Democratic 
party  for  Congress,  in  which  he  assured  me  the  colored  voters  of  the  district  were  solid 
for  Buchanan,  the  Republican  candidate  for  Congress.  He  requested  me  to  write  to 
Col.  T.  W.  Harris,  the  Greenback  candidate  for  Congress,  that  he  (Colonel  Harris) 
was  "  gone  up,"  and  to  come  home.  I  assured  Colonel  Manning  that  if  his  statement 
was  correct  I  would  prefer  that  Harris  would  withdraw  from  the  canvass.  Colonel 
Manning  said  that,  according  to  his  best  knowledge  and  judgment,  his  statement  was 
correct.  On  that  assurance,  together  with  my  personal  knowledge  of  the  fact  that  the 
colored  voters  in  my  neighborhood  were  solid  for  Buchanan,  I  telegraphed  Col.  T.  W. 
Harris  at  Batesviile,  Miss.,  that  his  chances  here  were  comi>romi8i^d  ;  that  the  colored 
voters  were  solid  for  Buchanan.  Colonel  Manning  brought  said  telegram  to  Holly 
Springs  for  me.  He  afterwards  assured  me  that  he  sent  the  telegram  to  Colonel  Har- 
ris. 

Q.  4.  Was  it  or  was  it  not  a  fact,  at  the  time  that  Colonel  Manning  made  the  fore- 
going statement  to  you,  that  he  had  canvassed  the  entire  ten  counties  comprising  this 
Congressional  district,  and  that  the  canvass  absolutely  closed  within  a  few  days  after 
said  conversation  referred  to  f 


BUCHANAN   VS.    MANNING.  305 

(Same  objection  as  before.) 

A.  He  stated  to  me  that  he  had  made  an  entire  canvass  of  the  district,  and  that  the 
statement  made  to  me  was  founded  on  his  information  that  he  had  gained  during  the 
canvass.     This  was  but  a  few  days  before  the  election. 

Q.  5.  In  your  reply  to  question  three,  do  you  mean  to  refer  exclusively  to  the  col- 
ered  race  or  otherwise  ? — A.  I  mean  the  colored  vote  exclusively. 

Q.  6.  State  to  what  extent,  if  you  know,  the  colored  vote  that  voted  was  cast  for 
Buchanan,  or  other  candidates  (as  applied  to  precincts  in  the  western  part  of  the 
county),  at  the  last  election? — A.  From  all  information  I  have,  it  was  a  solid  Repub- 
lican vote  for  George  M.  Buchanan  for  Congress  in  the  precincts  referred  to.  So  far 
as  my  personal  knowledge  goes,  it  only  refers  to  my  own  box. 

Q.  7.  To  what  extent  is  the  negro  vote  in  the  district  referred  to  Republican  T — ^A* 
Pretty  nnanimous. 

Page  214: 

Col.  Thos.  W.  Harms,  being  sworn  according  to  law,  testifies  as  follows : 

Question  1.  Stat*  where  you  reside ;  how  long  you  have  there  resided ;  your  occu- 
pation ;  how  long  yon  have  pursued  said  occupation,  and  to  what  extent  in  the  sec- 
ond Congressional  district  of  Mississippi. — Answer.  I  reside  in  Holly  Springs,  Miss., 
and  have  resided  there  since  about  the  year  1850  ;  I  am  a  lawyer;  have  been  upward* 
of  thirty  years,  and  engaged  in  the  duties  of  my  profession  in  several  of  the  counties 
of  the  second  Congressional  district  since  I  have  lived  in  Holly  Springs ;  my  practice- 
has  been  general  and  quite  extensive. 

Q.  2.  With  what  political  party  have  you  been  identified  with  prior  to  the  year 
1879?  State  also  what  official  position  you  held  in  said  party  during  the  year  1876, 
and  since  that  time. — A.  I  was  a  member  of  the  State  executive  committee  of  the 
Democratic  party  in  1877  and  1878 ;  and  also  chairman  of  the  executive  committee  of 
that  party  for  the  county  of  Marshall ;  and  was  a  member  of  and  acted  with  the  Dem- 
ocratic party  until  1879;  since  which  time  I  have  been  acting  with  the  National 
Greenback  Labor  party. 

Q.  3.  Were  you  a  candidate  for  office  at  the  election  November  2, 1880  ?  If  so,  state 
for  what  office;  if  you  made  a  canvass  of  the  second  Congressional  district,  to  what 
extent ;  also  state  the  extent  of  your  acquaintance  with  tlie  politics  of  the  voters  of" 
said  second  Congressional  district. — A.  I  was  the  candidate  of  the  National  Greenback 
Labor  party  for  Congress  for  the  second  Congressional  district  at  the  election  in  No- 
vember, 1880,  and  as  such  canvassed  the  district  generally ;  my  knowledge  of  the  poli- 
tics of  the  voters  of  said  district  is  such  as  such  a  canvass  would  give,  in  connection 
with  my  long  residence  in  the  same,  engaged  in  my  profession,  and  having  taken  a 
general  interest  in  politics  since  I  attained  my  majority. 

Q.  4.  What  class  of  persons  constitute  the  three  political  parties  in  this  district  f 
State  the  dilferent  divisions  as  near  as  you  can  as  to  color. — A.  A  very  great  majority 
of  the  colored  voters  of  the  district  belong  to  the  Republican  party ;  the  white  voters- 
are  divided  generally  between  the  Democratic  and  Greenback  parties ;  colored  voters- 
who  act  and  vote. with  the  Democratic  party  are  in  my  opinion  very  few  in  number; 
in  the  election  of  last  year  my  observation  and  information  lead  me  to  believe  that 
out  of  the  thirty-five  hundred  and  eighty-five  votes  reported  to  have  been  cast  for  the 
Greenback  candidate  for  Congress  in  the  said  district  there  could  not  have  been  more 
than  about  one  thousand  of  them  colored,  most  of  whom  live  in  Yalobusha  County  ; 
the  white  voters  who  act  with  the  Republican  party  in  said  district  I  don't  think  are 
at  all  numerous. 

Q.  5.  Have  or  have  you  not,  since  the  election,  fully  and  particularly  informed  your- 
self as  to  the  number  of  votes  you  received  at  said  election  at  each  of  the  various 
counties  and  precincts  in  said  district  ? — A.  I  have  seen  statements  purporting  to  be 
authentic  as  to  the  number  of  votes  reported  to  have  been  cast  for  me.  and  have 
heard  statements  from  friends  upon  the  same  subject. 

Q.  6.  Did  you  witness  just  preceding  the  election  a  conversation  between  Colonel 
Manning,  candidate  for  Congress,  and  Dr.  A.  M.  Lyle  on  the  subject  as  to  how  and 
for  whom  the  colored  voters  of  this  district  were  going  to  vote?  If  so,  state  what 
was  said  between  them  on  the  subject. 

(Objected  to  on  the  ground  that  the  question  is  original  and  shonld  have  been  asked^ 
if  at  all,  during  the  time  allowed  to  take  testimony-in-chief. ) 

A.  In  a  dicussion  between  Colonel  Manning  and  myself  at  Watson,  in  this  county, 
I  think  the  night  preceding  the  day  of  the  election,  the  question  arose  as  to  a  report 
that  Dr.  Lyle  had  abandoned  me  and  intended  to  support  Colonel  Manning,  and  that^ 
Lyle  had  sent  me  a  dispatch  suggesting  my  withdrawal  from  the  canvass  because  the 
colored  vote  of  the  district  ha<l  coucentrated  upon  !Captain  Buchanan,  the  Republicart 
candidate  for  Congress.  Dr.  Lyle  was  present  and  stated  to  the  audience,  in  my  pres- 
ence and  Colonel  Manning's,  that  he  (Lyle)  had  met  with  Colonel  Manning  and  waa 
told  by  him  to  write  or  telegraph  me  that  I  had  better  withdraw,  as  the  colored  vote 
was  all  goiugfor  Buchanan;  that  he  (Lyle)  replied  such  was  the  condition  of  things- 


304  DIGEST  OF  ELECTION  CASES. 

in  his  neighborhood,  and  that  npon  the  statement  made  to  him  by  Colonel  Manning 
lie  had  accordingly  telegraphed  me  at  Batesville,  in  Panola  County,  that  the  negroes 
were  all  going  for  Buchanan,  or  words  to  that  effect ;  that  he  sent  me  the  dispatch 
based  alone  upon  what  Manning  had  told  him,  except  as  to  the  condition  of  things 
in  his  own  neighborhood ;  that  he  did  not  profess  to  know  what  was  the  condition 
of  affairs  beyond  his  own  neighborhood.  I  never  received  the  foregoing  dispatch  at 
Batesville,  having  left  before  it  was  received.  The  foregoing  is  substantially  what 
occurred  as  I  remember  it.  .      .  ■■ 

Q.  7.  What  proportion  of  the  white  vote  of  this  Congressional  district  are  opposed 
to  the  Democratic  party,  and  what  proportion  of  said  vote  would  vote  against  the 
candidates  of  said  party  at  an  open,  fair  election,  and  upon  full  assurance  that  their 
votes  would  be  counted  as  cast  ? 

(Objected  to  as  irrelevant,  incompetent,  and  illegal.) 

A.  I  can  only  answer  as  a  matter  of  opinion.  It  would  depend  very  much  upon  the 
ouestious  involved  and  what  parties  were  engaged  in  the  contest.  I  think,  however, 
that  one-fourth  or  one-fifth  of  the  white  voters  of  the  district  are  opposed  to  the  pres- 
ent policy  and  management  of  the  Democratic  party  and  would  cast  their  votes 
against  it. 

Re-examined : 

Q.  I.  State  what  proportion  of  the  colored  vote  in  this  district  voted  the  Demo- 
cratic ticket,  and  what  proportion  of  the  white  vote  voted  the  Republican  ticket,  as 
near  as  you  can  in  numbers  as  to  each  party,  as  estimated  from  your  information 
gained  during  the  canvass.     State  fully. 

(Objected  to  on  ground  that  it  is  original,  and  not  in  rebuttal  of  anything  drawn 
out  on  cross-examination,  and  as  incompetent.) 

A.  I  can  only  give  an  opinion  in  answer  to  this  question.  From  all  the  information 
In  my  possession,  my  opinion  is  that  there  were  fully  as  many,  and  I  think  more,  white 
votes  cast  for  the  Republican  candidate  for  Congress  than  there  were  colored  votes 
for  the  Democratic  candidate.  When  the  extraordinary  efforts  made  by  the  Repub- 
lican party  had  succeeded  in  reorganizing  the  colored  vote,  my  opinion  is  that  the 
•work  done  by  that  party  was  pretty  thoroughly  successful.  I  know  of  no  county  in 
the  district  in  which  the  Greenback  party  succeeded  in  maintaining  its  control  over 
the  colored  vote,  except  in  Yalobusha.  In  addition  I  am  satisfied  that  some  white 
Greeubackers  had  become  so  much  incensed  in  consequence  of  the  warfare  waged 
against  them  and  their  party  by  the  Democratic  party  that,  despairing  of  the  success 
of  their  own  candidate,  they  voted  for  the  Republican  candidate ;  and  further  than 
this  deponent  saith  not. 

Q.  2.  What  is  the  standing  of  the  contestant,  George  M.  Buchanan,  in  his  party 
-and  as  a  citizen  ? — A.  I  think  his  position  in  his  party  is  a  prominent  and  controlling 
one,  certainly  in  his  section  of  the  State.  As  a  citizen,  he  is  kind,  charitable,  gener- 
ous, and  public-spirited,  and  I  know  nothing  to  his  detriment  except  that  he  belongs 
to  what  is  known  here  as  the  Radical  party,  and  that  he  became  a  candidate  for  Con- 
gress in  the  last  election  to  my  detriment.  As  a  candidate  for  office  I  am  satisfied 
that  he  is  considerably  stronger  than  his  party,  in  this  county  particularly.  As  a 
neighbor  he  is  equal  to  any  man. 

X  Q.  4.  You  have  been  asked  as  to  the  standing  and  character  of  George  M.  Bu- 
chanan as  a  politician  and  as  a  gentleman.  Please  state  as  to  the  character  and 
standing  of  Van  H.  Manning  in  both  respects. — A.  Having  been  three  times  nomi- 
nated by  his  party  as  a  candidate  for  Congress,  and  returned  as  elected,  is  a  sufficient 
answer  as  to  the  character  and  standing  of  Van.  H.  Manning  with  his  party.  In  all 
the  elements  of  kindness,  generosity,  and  charity,  he  is  the  equal  of  any— infinitely 
too  much  so  for  his  own  good. 

Witness  Mahon  (page  106,  Eecord) : 

Q.  7.  Do  you  know  of  a  newspaper  published  in  Holly  Springs  known  as  the  Holly 
Springs  "  South"  1    If  so,  state  the  political  party  that  that  paper  advocates. 

(Question  objected  to  and  ruled  out.) 

Q.  8.  Did  you  or  not  read  in  the  Holly  Springs  "  South,"  a  Democratic  newspaper 
published  in  HoUy  Springs,  and  published  on  December  8,  1880,  the  following  lan- 
guage : 

rXhe  South,  Holly  Springs,  Miss.,  December  8,  1880.] 

BUCHANAN  TO  CONTEST. 

It  seems  to  be  generally  believed  by  our  exchanges  that  Buchanan  will  contest  for 
Manning's  seat.  If  he  ever  gets  it,  it  will  be  by  an  utterly  unscrupulous  partisan 
•decision  by  the  House  of  Representatives.  Never  was  there  a  fairer  election  in  any 
^strict  of  the  State  than  that  of  this,  when  Manning  was  elected.     T  he  negroes  gener- 


BUCHANAN    VS.    MANNING.  305 

ally  voted  for  Buchanan.  The  ivhites  divided  between  Manning  and  Harris.  Every  man 
of  the  three  parties  voted  as  he  pleased,  except  those  who  voted  for  Bachaaan,  and 
they  went  as  a  flock,  under  instriictious,  by  which  they  were  easily  fooled  iuto  voting 
for  him.  The  ballots  were  printed  in  accordance  with  the  law  of  the  State  and  counted. 
Buchanan  was  beaten  by  not  getting  votes  enough — that  is  all.  He  will  have  to  be 
elected  at  Washington,  if  he  ever  is.  It  will  not  be  by  votes  of  the  people  of  Mis- 
sissippi. And  when  Congress  seats  Buchanan  the  second  Congresiional  district  of 
Mississippi  will  have  no  Representative. 

(Question  objected  to  and  ruled  out  as  before,  and  question  not  permitted  to  be 
answered.) 

Q.  State  whether  or  not  you  know  the  editor  of  the  Holly  Springs  "  South,"  and  his 
character  for  political  intelligence;  if  so,  state  his  character  for  political  intelligence.^ — 
A.  I  know  Mr.  Tyler  when  I  meet  him,  and  his  character  for  intelligence  is  good. 

Q.  9.  State,  if  you  know,  in  what  party  interest  that  newspaper,  the  Holly  Springs 
"  South,"  acted  during  the  campaign  of  18S0,  and  what  candidate  for  Congress  it  ad- 
vocated. 

(Objected  by  counsel  for  contestee  as  being  irrelevant,  and  objection  sustained  and 
question  not  permitted  to  be  answered.) 

For  reasons  which  will  hereafter  appear  apparent,  we  have  briefly 
referred  to  the  evidence  of  the  voting  strength  of  each  of  the  political 
parties ;  the  class  of  voters  from  which  each  party  was  organized ;  the 
canvass  made  by  each ;  and  the  manner  in  which  each  party's  vote 
turned  out  and  came  to  the  jjolls. 

INTIMIDATION  OP  COLORED   VOTERS  BY  CONTESTANT'S  FRIENDS. 

We  have  very  carefully  examined  the  evidence  relating  to  the  intimi- 
dation of  colored  voters  by  contestant's  friends  (as  is  alleged  by  con- 
testee, in  his  rei>ly  to  noti»'-e  of  contest),  and  do  not  find  that  the  evi- 
dence discloses  a  single  instance  where  a  colored  voter  was  deprived  of 
voting  for  contestee  by  reason  of  threats  or  intimidation  from  any  source. 
The  evidence  discloses  the  fact  to  be  that  contestee  received  but  few  of 
the  votes  of  colored  voters,  and  that  there  was  by  far  a  larger  number 
of  white  voters  who  voted  for  contestant  than  there  were  colored  voters 
who  v^oted  for  contestee.  The  vote  as  returned  is  stated  as  follows, 
upon  page  393  of  the  Record. 

Harris,  Greenbacker 3, 585 

Buchanan,  Republican 9,996 

Manning,  Democrat 15, 255 

The  evidence  shows  there  to  be  about  19,700  colored  voters  and  about 
17,100  white  voters  in  the  district,  with  some  2,600  more  colored  voters 
thim  whites ;  that  thecolored  voters  are  Republicans,  with  few  exceptions, 
and  so  voted  (or  made  the  effort  to  vote),  as  is  shown  to  be  the  case  also 
with  quite  a  number  of  white  voters;  and  that  the  white  voters  gener- 
ally were  divided  (in  a  measure)  between  the  Democratic  and  Green- 
back candidates.  Granting  that  the  canvass  was  equally  thorough  and 
active  on  the  part  of  all  parties,  and  that  the  voters  generally  came  to 
the  polls,  we  cannot  resist  the  conclusion  that  on  the  day  of  the  election 
the  voting  strength  of  contestee^s  party  was  in  a  minority  to  the  extent 
of  5,000  to  6,000  voters. 

Yet  notwithstanding  this  evident  condition  of  the  two  parties  on  the 
day  of  the  election,  we  are  confronted  with  a  return,  heretofore  referred 
to,  giving  the  contestee  a  majority  of  some  5,300  voters.  Were  we  to 
take  the  State  census  as  evidence  in  reaching  a  conclusion  on  thisi>oint, 
contestee's  party  would  still  be  in  a  large  minority. 

There  are  only  17,155  white  voters  in  the  district.     The  proof  is  clear 
that  Harris,  the  Greenback  candidate,  received  3,585  votes,  of  which 
(not  exceeding)  1,000  were  colored,  leaving  him  2,585  white  votes. 
H.  Mis.  3.5 20 


306  DIGEST    OF    ELECTION    CASES. 

It  is  further  clearly  proven  tLat  quite  a  number  of  white  voters  did 
not  go  to  the  polls.     (See  evidence,  Howze,  p.  19  ;  Kewsom,  p,  22.) 

It  is  further  proven  that  contestant  received  a  numberof  white  votes^ 
and  yet,  according  to  the  returns,  the  contestee  is  credited  with  15,215 
votes,  which  is  manifestly  impossible  under  the  circumstances. 

On  the  other  hand,  the  contestant  is  credited  with  only  9,996  votes, 
while  there  are  19,800  colored  voters  in  the  district,  who,  according  to 
the  proof  of  contestee's  own  friends,  were  all  solid  for  contestant,  and 
came  to  the  polls  and  voted  or  offered  to  vote. 

This  again  is  a  manifest  impossibility.  This  at  once  throws  suspiciou 
on  the  fairness  of  the  count,  and  when  the  whole  of  the  election  ma- 
chinery was  in  the  hands  of  contestee's  friends  the  burden  of  showiug^ 
the  fairness  of  the  count  should  be  upon  him  when  a  reasonable  doubt 
of  fairness  has  been  established  by  the  proof.  This  brings  us  to  a  con- 
sideration of  the  evidence  tending  to  show  how  this  result  was  brought 
about  (after  first  examining  the  election  laws  of  Mississippi  bearing  on 
the  points  in  controversy). 

ELECTION  LAWS,   CODE  OF   1880. 

Sec.  105.  The  books  of  registration  of  the  electors  of  the  several  election  distriota 
in  each  county  and  the  poll-books  as  heretofore  made  out  shall  be  delivered  by  the 
county  board  of  registration  in  each  county,  if  not  already  done,  to  the  clerk  of  the 
circuit  court  of  the  county,  who  shall  carefully  preserve  them  as  records  of  his  office, 
and  the  poll-books  shall  be  delivered  in  time  for  every  election  to  the  commissioners 
of  election,  and  after  the  election  shall  be  returned  to  t-aid  clerk. 

The  clerk  of  the  circuit  court  of  each  county  shall  register  on  the  registration  book 
of  the  election  district  of  the  residence  of  such  person  any  one  entitled  to  be  regis- 
tered as  an  elector,  on  his  appearing  before  him,  and  taking  and  subscribing  the  oath 
required  by  article  seven  aud  section  three  of  the  constitution  of  this  State,  and 
printed  at  the  top  of  the  pages  of  the  registration  books,  which  subscription  of  the 
oath  aforesaid  shall  be  by  the  person  writing  his  name  or  mark  in  the  proper  column 
of  said  book. 

Section  121  of  the  Mississippi  Code  of  1880  is  as  follows : 

Two  months  before  any  general  election  and  any  election  of  Eepresentatives  in 
Congress,  and  any  election  of  elector  of  President  and  Vice-President  t)f  the  United 
States,  the  governor  and  lieutenant-governor,  or  president  of  the  senate  if  the  lieu- 
tenant-governor is  performing  the  duties  of  governor,  or  if  there  is  no  lieutenant- 
governor,  and  the  secretary  of  state,  or  a  majority  of  such  officers,  shall  appoint  in 
each  county  in  this  State  "commissioners  of  election,"  to  consist  of  three  competent 
and  suitable  men,  who  shall  not  all  be  of  the  same  political  party,  if  such  men  of  difterent 
political  parties  can  conveniently  be  had  in  the  county,  and  who,  lor  good  cause,  may 
be  removed  in  the  same  manner  as  they  are  appointed.  Before  acting  the  said  com- 
missioners shall  severally  take  the  oath  of  office  prescribed  by  the  constitution  and 
file  it  in  the  office  of  chancery  clerk  of  the  country,  who  shall  preserve  such  oaths. 
While  engaged  in  their  duties  the  said  commissioners  shall  be  conservators  of  the 
peace,  with  all  the  powers  and  duties  of  such,  in  the  county  in  which  they  are  acting. 
They  shall  continue  in  office  for  one  year  unless  removed  and  uniil  successors  are  ap- 
pointed. 

Section  124  of  the  Mississippi  Code  of  1880  is  as  follows : 

On  the  last  Monday  of  October  preceding  a  general  election,  and  live  days  before 
any  other,  the  commissioners  of  electi'U  shall  meet  at  the  office  of  the  clerk  of  the 
circuit  court  of  the  county,  and  carefully  revise  the  registration  books  of  the  county 
and  the  poll-books  of  registration  of  the  several  precincts,  and  shall  erase  therefrom 
the  names  of  all  persons  improperly  thereon,  or  who  have  died,  removed,  or  become 
disqualifted  as  electors  from  any  cause,  and  shall  register  the  names  of  all  persons 
illegally  denied.  All  complaints  of  a  denial  of  registration  may  be  made  to  aud  be 
heard  and  decided  by  the  commissioners  of  elections,  who  shall  cause  the  books  of 
registration  to  be  corrected,  if  necessary,  so  as  to  s/iow  the  names  of  all  qualified  electors  in 
the  county  and  such  books  shall  be  prima  facie  evidence  of  the  names  and  number  of 
the  qualified  electors  of  the  county. 

Sec.  125.  The  clerk  of  the  circuit  court  shall  attend  such  commissioners,  if  so  re- 
quested, anf]  shall  furnish  them  the  books  of  registration   and  the  poll-books,  and, 


BUCHANAN    VS.    MANNING.  307 

"hall  render  them  all  needed  assistance  of  which  he  is  capable  in  the  performance  of 
the  duties  in  revising  their  lists  of  qualified  electors. 

Section  133  is  as  follows  : 

Prior  to  any  election  the  said  commissioners  of  elections  shall  appoint  three  persona 
for  each  election  precinct  to  be  inspectors  of  the  election,  who  shall  notall  he  of  thesame  polit- 
icalparty,  if  suitable  persons  of  different  parties  are  to  be  had  in  the  election  district,  and  if 
any  person  appointed  shall  fail  to  attend  and  serve,  the  inspectors  present,  if  any, 
may  designate  one  to  fill  his  place,  and  if  such  commissioners  of  election  shall  fail  to 
make  such  appointment,  and  in  case  of  failure  of  all  those  appointed  to  attend,  any 
three  qualified  electors  present  when  the  polls  shall  be  opened  may  act  as  inspectors. 

Section  136  is  in  the  following  words : 

All  elections  by  the  people  of  this  State  shall  be  by  ballot.  The  poll  shall  be  opened 
at  nine  o'clock  in  the  inorning  and  be  kept  open  until  six  o'clock  in  the  evening,  and  no  longer  ; 
and  every  person  entitled  to  vote  shall  deliver  to  one  of  the  inspectors,  in  the  presence  of 
the  others,  a  ticket  or  scroll  of  paper  on  which  shall  be  written  or  printed  the  names  of 
the  persons  for  whom  he  intends  to  vote,  which  ticket  shall  be  put  in  the  ballot-box, 
and  at  the  same  time  the  clerks  shall  take  doum  on  separate  lists  the  name  of  every  person 
voting;  and  when  the  election  shall  be  closed  the  inspectors  shall  publicly  open  the  box  and 
number'  the  ballots,  at  thesame  time  reading  aloud  the  names  of  the  persons  voted  for,  which 
shall  be  taken  dotrn  by  said  clerks  in  the  presence  of  the  inspectors  ;  and  if  there  should  be 
two  or  more  tickets  rolled  up  together,  or  if  any  ticket  shall  contain  the  names  of 
more  persons  for  any  office  than  snch  elector  had  a  right  to  vote  for,  such  ballot  shall 
not  be  counted. 

In  brief,  the  circuit  clerk  of  each  county  is  the  sole  registrar  of  all 
the  voters.  The  registration  books  are  records,  and  are  required  to  be 
kept  in  his  office.  The  registrar  is  required  to  register  voters  any  day 
in  the  year  that  the  voter  may  choose  to  apply  for  registration,  and  every 
person  desiring  to  register  is  required  to  come  to  the  county  seat  for 
that  purpose,  and  must  make  oath  and  sign  the  registration  books. 

The  State  board,  consisting  of  the  governor,  lieutenant-governor,  and 
secretary  of  state,  appoint  three  election  commissioners  for  each  county, 
who  are  to  be  selected  for  their  competency  and  suitableness  to  dis- 
charge the  duties  required  of  them.  They  must  not  all  be  chosen  from 
the  same  political  party. 

These  county  commissioners  are  required  to  meet  at  the  office  of  the 
registrar  immediately  preceding  every  election  and  correct  the  regis- 
tration and  poll  books,  "  so  as  to  shoic  the  names  of  all  qualified  electors 
in  the  county. ^^  The  registrar  is  required  to  assist  them  in  the  discharge 
of  the  latter  duty.  These  commissioners  appoint  three  inspectors  to  each 
voting  place  in  the  county,  icho  must  he  selected  from  electors  suitable  and 
competent  to  perform  the  duties  of  inspectors  (count  the  vote,  make  out, 
certify  the  returns,  &c.),  and  these  inspectors  are  to  be  selected  from 
different  political  parties. 

The  election  commissioners  hold  in  their  hands  the  entire  election 
machinery  of  their  counties;  they  establish  and  abolish  election  precincts 
atwill ;  they  revise  the  registration  and  i)oll  books,  erasing  names  there- 
from as  occasion  demands ;  they  sit  as  a  court  to  decide  appeals  from 
the  circuit  clerk  when  complaint  is  made  that  registration  is  improperly 
refused ;  they  appoint  all  election  officers  in  their  counties,  including 
peace  officers  to  i)reserve  order  at  the  voting  places ;  they  receive,  com- 
pute, and  return  the  whole  vote  of  their  counties ;  and  to  exercise  these 
great  powers  and  delicate  trusts  the  concurrence  of  only  two  of  the  three 
commissioners  is  required.  Will  it  be  pretended  that  men  who  are  utterly 
illiterate  are  ^^  competent  and  suitabW^  for  so  important  an  office,  or  that 
their  appointment  is  a  compliance  with  the  law  in  any  respect? 

Before  i>roceeding  to  review  the  acts  of  the  election  officers,  it  is  well 
enough  to  call  attention  to  a  circular  issued  by  General  Featherstone 
at  an  early  day  of  the  canvass.    The  importance  of  this  circular  is  in  the 


308  DIGEST  OF  ELECTION  CASES. 

fact  that  General  Featherstone  is  contestee's  own  witness,  and  is  a  man 
of  national  character,  having  been  a  Eepresentative  in  Congress  before 
the  war,  and  now  circuit  judge  in  the  State  of  Mississippi.     (See  his  evi- 
dence. Record,  p.  133.) 
Page  334 : 

X  Int  13  Did  you  as  chairman  of  the  Democratic  committee,  and  by  authority  of  the 
committee.'isaoe  and  cause  to  be  published  the  following  call,  which  I  here  append 
as  part  of  this  question,  marked  G.  M.  B.  ? 

MASS  CONVENTION. 

There  will  be  a  mass  convention  of  the  Democrats  of  Marshall  County  at  the  court- 
house in  Holly  Springs,  at  11  o'clock  a.  m.,  on  Saturday,  the  24th  day  of  July,  1880, 
for  the  purpose  of  electing  delegates  to  attend  a  district  convention  in  Water  Valley, 
Miss.,  on  the  11th  day  of  August,  1880,  to  nominate  a  candidate  for  Congress. 

Let  everybody  come.  .,,     .       .     « 

Let  the  enemy  knoio  in  the  beginning  that  in  this  campaign  the  Democracy  wUl  mn  at  all 
hazards. 

Bv  order  of  the  executive  committee. 

^  W.  S.  FEATHEKSTONE, 

Chairman. 

Arthur  Fant, 

Secretary. 

(Indorsed:)  G.  M.  B. 

A.  The  executive  committee  instructed  the  secretary  to  prepare  and  publish  a  call 
for  the  meeting  indicated  in  the  card,  and  the  call  was  prepared  and  published  by  the 
secretary. 

The  foregoing  may  very  properly  be  considered  the  initial  step  on  the 
part  of  contestee's  friends  towards  carrying  the  election  in  the  manner 
indicated  by  the  circular. 

As  we  have  said  in  another  Misssissippi  case — Lynch  vs.  Chalmers — 
decided  in  this  Congress — 

The  general  doctrine  in  construing  election  statutes  is,  that  they  are  to  be  construed 
liberally  as  to  the  elector,  and  strictly  as  to  the  officers  who  have  duties  to  perform 
under  tliem.  A  statute  directing  certain  things  to  be  done  by  election  officers  ought 
to  be  followed  by  them  with  a  high  degree  of  strictness,  but  duties  to  be  performed 
by  the  electors,  as  declared  by  statute,  are  directions  merely. 

We  do  not  propose  to  discuss  the  great  and  vital  importance  of  an 
im])artial  registration  of  voters  where  it  is  made  a  condition  precedent 
to  the  exercise  of  the  elective  franchise,  as  is  the  case  under  the  consti- 
tution and  laws  of  Mississippi. 

APPOINTMENT  OF  ELECTION  OFFICERS. 

The  evidence  is  very  full  that  both  the  Republicans  and  Greenbackers 
of  the  counties  challenged  made  every  effort  by  petition  and  otherwise 
to  secure  the  appointment  of  such  (reasonable)  number  of  both  county 
commissioners  and  also  precinct  inspectors  as  they  were  fairly  entitled 
to  under  the  law,  and  it  is  no  less  clear  that  their  wishes  were  almost 
entirely  disregarded,  especially  in  counties  having  large  Republican 
mnjoTities  prima  facia.  We  submit  the  following  brief  of  evidence  on 
this  point : 

DE  SOTO  COUNTY. 

J.  F.  Pratt,  on  page  24,  testifies  that  "the  county  board  of  election  commissioners 
was  composed  of  two  well-known  Democrats  and  one  colored  man,  neither  of  whom 
were  identified  with  the  Republican  party  ;  the  colored  man  can  neither  write  nor 


BUCHANAN    VS.    MANNING.  309 

read  writing,  arid  that  the  Republican  county  committee  endeavored  to  secure  the 
appointment  of  Newsou,  a  well-known  and  competent  Rejiublican,  as  commissioner, 
and  failed." 

See  also  testimony  of  Nelson,  on  page  37,  showing  "that  an  ignorant  colored  man 
was  appointed  commissioner  over  protest  of  Republicans  of  the  county  ;"  and  testi- 
mony of  Anthony  Mathews,  the  commissioner  appointed,  on  page  28,  showing  that  he 
could  not  write  or  read  writing,  and  knew  nothing  of  the  correctness  of  the  returns 
except  what  was  told  him  by  the  other  commissioners. 

LA  FAYETTE  COUNTT. 

B.  P.  Scruggs,  an  mtelligent  white  Republican,  was  recommended  for  commissioner 
by  his  party  friends,  and  a  negro,  "Thomas  Jefferson,  Avho  has  very  limited  educa- 
tion, if  any,  was  appointed"  (see  page  51).  Testimony  of  Jefferson,  the  colored  man 
appointed  commissioner,  page  71,  shows  that  no  Republican  recommended  his  appoint- 
ment, and  that  he  was  appointed  on  recommendation  of  the  chancery  clerk,  county 
treasurer,  and  other  prominent  Democrats :  and  that  he  was  not  consulted  by  his 
co-commissioners  in  the  appointment  of  election  officers  ;  and  his  evidence  will  show 
his  utter  unfituess  for  the  position.  The  testimony  of  Beauland,  page  311,  shows  that 
he  and  one  R.  S.  McGowan  were  the  two  Democratic  commissioners  ;  and  the  testi- 
mony of  E.  Nunnally,  page  211,  shows  the  unscrupulous  character  of  McGowan,  that 
he  said  to  witness  that  he  would  ".-tuff  ballot-boxes  to  beat  the  Republicans,"  and 
this  witness  testifies  that  he  would  not  believe  McGowan  on  oath. 

TALLAHATCHIE  COUNTY. 

The  testimony  of  T.  W.  Turner,  pages  186-7,  shows  that  no  regard  was  paid  to  the 
wishes  of  Republicans  in  appointing  commissioners ;  that  two  Democrats  and  one 
incompetent  colored  man  w  ere  appointed.  The  Republicans  desired  the  appointment 
of  Littlewort,  whose  character  for  intelligence  will  be  shown  by  his  evidence  on  pages 
194-5.  The  want  of  educational  qualifications  for  the  position  of  commissioner  is 
shown  by  the  evidence  of  the  colored  commissioner  himself,  on  pages  195-6,  which 
discloses  the  fact  that  he  coald  not  read  the  mannscript  of  his  evidence  then  being 
given. 

TATE  COUNTY. 

In  this  county,  as  will  be  seen  in  the  evidence  of  Wright  on  pages  172  to  174,  two  of 
the  commissioners  appointed  were  Democrats,  and  the  other  a  Greenbacter,  and  that 
when  Jones,  the  Greenback  commissioner,  failed  to  secure  the  appointment  of  the 
election  officers  he  proposed,  left  the  board,  saying  he  would  have  nothing  more  to 
do  with  it,  and  that  only  four  of  the  election  officers  for  the  county  recommended  by 
the  Republicans  were  appointed,  and  only  two  of  them  served.  (See  testimony  of 
Shands,  page  402.) 

MARSHALL  COUNTY. 

In  this  county,  as  will  be  shown  by  the  evidence  of  McCorkle,  on  pages  123  to  125, 
two  Democrats  and  one  competent  colored  Republican  were  appointed  commissioners, 
and  that  the  Republican  commissioner  resigned  ou  account  of  the  disregard  of  his 
rights  as  a  commissioner  by  his  colleagues,  in  abolishing  election  precincts,  and  in 
transferring  others,  without  his  presence  or  consent,  and  in  signing  his  name  to  no- 
tices of  the  same,  thus  leaving  the  election  to  be  managed  by  the  two  Democratic 
commissioners;  and  on  pages  i?36 to  339,  In  the  testimony  of  Mr.  Wallace,  one  of  the 
Democratic  commissioners,  and  a  brother-in-law  of  the  Democratic  candidate  for  Con- 
gress, it  is  shown  that  some  time  in  October,  after  serving  as  commissioner  nearly  the 
entire  canvass,  and  after  the  work  of  abolishing  and  transferring  electionprecincts  had  been 
accomplished,  Mr.  Wallace  also  resigned  his  office  out  of  considerations  of  delicacy, 
a'.d  his  successor  was  afterwards  appointed,  but  it  does  not  appear  that  any  succes- 
sor was  appointed  to  the  Republican  commissioner. 

The  manner  in  wliicli  these  county  commissioners  performed  their 
duty  in  appointing  the  inspectors  of  election,  especially  in  counties  that 
were  manifestly  largelj"  Eepublican,  is  very  fairly  stated  by  contestant's 
counsel,  as  follows: 

As  will  be  seen  from  the  evidence  of  Johnson,  page  231,  the  Greenbackers  were  not 
recognized  as  a  party,  and  there  was  no  pretense  of  appointing  their  men  as  election 


310  DIGEST    OF    ELECTION    CASES. 

officers ;  and  the  one  inspector  pretendedly  accorded  to  the  Eepnblicans  was  not 
alwavs  appointed,  and  when  appointed  was  almost  universally  so  utterly  incompetent 
as  to* render  the  appointment  worse  than  a  mockery.  Take  for  illustration  the  county 
of  De  Soto,  where  there  are  several  thousand  voters,  sixteen  voting  places,  and  as  a 
consequence  ninety-nine  election  otlScers;  and  of  these  one  inspector  appears  to  have 
been  a  Greenbacker  (see  page  244),  and  of  the  others  not  more  than  aixieen  belouging 
to  the  parties  opposing  the  party  of  contestee,  and  fourteen  of  them  testify  that  they 
cannot  read  or  write.  Incredible  as  this  statement  may  appear,  it  will  be  fully  verified 
by  the  evidence  on  pages  10,  12,  13,  15,  28,  32,  43,  45,  40,  and  47,  this  being  the  testi- 
mony of  the  otJicers  themselves.  That  suitahle  Kepublicaus  and  Greenbaokers  could 
be  had  in  the  election  districts,  and  that  efforts  were  made  in  writing  an<l  in  person 
by  representatives  of  both  the  opposing  parties  to  have  these  suitable  and  competent 
men  appointed,  will  be  fully  shown  on  pages  25,  27,  and  231.  That  the  appointment 
of  intelligent  Democrats,  even  when  recommended  by  Republicans,  was  refused  will 
be  seen  in  the  evidence  of  Scrnggs  at  the  top  of  page  52. 

Not  to  dwell  tediously  upon  it,  the  two  counties  of  La  Fayette  and  Marshall  have 
about  the  same  number  of  election  ofBcers,  belonging  to  the  ditterent  parties  in  about 
the  same  proportion,  and  eleven  of  these  in  lach  county  testify  that  they  cannot  either 
read  or  write.  (See  pages  57,  60,  65,  66,  67,  68, 69,  72;  73,  74,  92,  95,  108,  lt)9,  114,  116, 
117,  119,  121,  125.)  That  suitable  persons  of  the  opposition  parties  could  be  found  in 
the  election  districts  of  these  counties,  and  that  earnest  etforts  were  made  to  secure 
their  appontment,  see  pages  51,  105,  and  203.  For  other  appointments  of  election 
officers  of  the  same  character  iu  other  counties,  read  pages  170,  18.'>,  190,  193,  178,  187, 
and  174.  In  the  five  counties  of  Marshall,  La  Fayette,  Tate,  De  Soto,  and  Talla- 
hatchie, out  of  the  small  number  of  election  officers  appointed  from  the  opposition 
parties  over  forty  of  them  could  not  read  or  write,  and  the  three  or  four  of  them  who 
claimed  to  be  able  to  read  iirint,  upon  being  tested  were  found  to  be  deficient  in  that. 
As  specimens  of  these  officers  thus  arbitrarily  appointed,  read  the  testimony  of  Cezar 
Pegues,  on  page  69,  where  he  testifies  that  he  is  "  about  sixty-five  years  of  age.  One 
of  my  eyes  is  entirely  out ;  the  other  I  cannot  see  good  out  of,  and  I  cannot  read  or 
write;"  and  of  Seaborn  Clark,  on  page  114,  where  he  says,  "I  can  neither  reader 
write;  I  cannot  hear  good  out  of  one  ear  at  all;  I  got  a  pin  stuck  in  the  drum  of  my 
ear." 

EEGISTKATION  OF  VOTERS. 

The  evidence  shows  that  in  the  four  counties  of  Marshall,  De  Soto, 
Panola,  and  Tallahatchie  (all  confessedly  largely  Republican  counties), 
the  county  commissioners  did  assemble  at  the  registrar's  office  some  ten 
days  prior  to  the  election,  but  manifestly  not  for  the  purpose  of  correct- 
ing the  books  "  so  as  to  show  the  names  of  all  the  qualified  electors  of 
the  county,"  as  is  the  plain  language  of  the  statute,  but  they  met 
there  and  deliberately  stopped  the  registration  of  voters  in  the  counties 
mentioned;  and,  not  satisfied  with  this,  went  deliberately  to  work  (for 
wiiat  cause  it  is  not  stated)  and  erased  from  the  poll  and  registration 
books  the  names  of  nearly  1,000  Republican  voters  who  had  previously 
registei'ed^  many  of  whom  swear  that  they  had  been  voting  for  years  at 
the  precincts  where  they  offered  to  vote  at  this  election,  and  the  fact  that 
their  names  had  been  erased  from  the  books  was  not  developed  until 
they  came  to  the  polls  to  vote.  This  is  shown  to  be  the  case  at  some 
forty  precincts  in  the  district.  (See  pages  Record  19,  23,  24, 27,  30,  52, 
70,  80,  123,  107,  196,  as  to  closing  of  registration.) 

For  evidence  of  Republicans'  nam^s  being  erased  from  registration 
and  poll  books,  and  not  being  permitted  to  vote  in  consequence  thereof, 
see  Record,  page  83,  Q.  21 ;  pp.  112,  91, 97, 91, 108, 119, 109,  111,  117,  60, 
100,  28,  19,  31,  34,  12,  13,  35,  44,  25,  40,  41,  168,  157,  178,  438,  439,  440, 
447,  448,  450,  452,  453,  454,  455,  456,  462,  463,  464. 

DE  SOTO  COUNTY. 

Record,  p.  24,  Q.  5 :  Witness  "  Pratt"  says  State  board  appointed  an 
ignorant  colored  man  to  represent  the  Republicans,  "who  is  totally  ig- 
noraut,"  and  not  identified  with  the  party,  as  one  of  the  county  election 
commissioners. 


BUCHANAN    VS.    MANNING.  311 

Record,  p.  28,  Q.  2  and  3 :  This  commissioner  says  he  cannot  write  or 
read  writing,  and  knew  nothing?  of  the  compiling  of  the  returns  save 
what  the  Democratic  members  of  the  board  told  him. 

Record,  p.  20,  Q.  15 :  "  Howze,"  Greenbacker,  proves  that  "Johnson," 
one  of  the  Democratic  commissioners, /or^ed  a  poll-hook  and  caused  it  to 
be  suhstituted  for  holding  the  election  at  Depot  Box,  instead  of  the  poll- 
"book  belonging  to  that  precinct  (at  Hernando). 

Record,  p.  29,  Q.  2:  "  Dr.  W.  M.  Johnson"  says  that  this  election  com- 
missioner admitted  to  him  that  he  did  make  the  book. 

Record,  p.  233,  Q.  25 :  This  commissioner  says  he  has  no  information 
•{except  hearsay)  as  to  whether  or  not  he  and  others  are  under  indictment 
in  the  Federal  court  for  the  infraction  of  election  laws. 

Record,  p.  458,  Q.  6  and  7 :  "  Howze"  says  he  was  present  in  court,  and 
that  this  commissioner  was  present,  when  his  case  was  continued  till  July 
t€rm,  1880. 

Record,  p.  457,  Q.  3:  Election  commissioners  abolish  Plumb  Point  pre- 
"Cinct. 

Record,  p.  21,  Q.  19;  p.23,Q.8;  p.24,Q.7;  p.27,Q.6:  Ten  days  prior 
to  the  election  the  registrar  refuses  to  register  any  more  voters,  and  the 
books  are  closed  against  them  for  the  season.  "  Nelson  "  says  voters 
were  coming  in  every  day  and  refused  registration. 

Record,  p.  21,  Q.  19 :  "  Howze  "  says  (estimates)  that  he  saw  as  many 
as  150  Republicans  during  that  time  who  told  him  that  they  had  applied 
for  registration  and  were  refused. 

Record,  p.  23,  Q.  8:  "Newsom"  says  the  closing  of  the  registration  at 
that  tine  was  a  source  of  general  complaint  among  Republicans  from  all 
over  the  county,  who  came  for  that  purpose ;  that  there  are  a  large  num- 
ber of  voters  who  generally  neglect  to  register  till  just  prior  to  election. 
Witness  heard  no  Democrat  complain. 

MARSHALL   COUNTY, 

Record,  Q.  3  and  4,  p.  336 :  AState  board  appoints  "  Wallace,"  Man- 
ning's brother-in-law,  as  one  of  the  county  commissioners. 

Record,  Q.  4  and  5,  p.  338:  "Wallace"  is  shown  to  have  been  in  the 
labit  of  officiating  at  elections.  Claims  to  have  acted  but  for  a  short 
dme,  but  on  being  pressed  (p.  338,  last  question)  admits  that  he  was 
such  all  the  campaign. 

Record,  Q.  7  to  10,  p.  123 :  "  McCorkle,"  Republican  commissioner, 
shows  that  Wallace  and  Hardin,  the  two  Democratic  commissioners, 
held  a  meeting  without  advising  him  of  it  and  forged  his  name  to  a  cir- 
cular, under  which  they  abolished  two  precincts,  and  changed  the  location 
of  two  others,  which  was  done  without  his  knowledge  or  consent. 

Record,  Q.  1  and  2,  p.  125:  McCorkle  shows  that  he  was  never  out  of 
Holly  Springs  more  than  one  day  at  a  time  at  that  period.  (See  circu- 
lar referred  to,  p.  124.) 

Record,  p.  76,  Q.  7 ;  p.  80,  Q.  5 :  The  county  registrar  closes  the  reg- 
istration books  ten  days  before  the  election  and  no  voters  are  permitted 
to  register  after  that  time. 

Record,  p.  123,  Q.  4  and  5:  "McCorkle,"  county  commissioner,  says 
that  they  were  always  crowded  with  applications  for  registration  papers 
during  the  last  few  days  prior  to  elections;  that  500  or  600  voters  gen- 
erally applied  for  registration  within  that  period. 

Record,  p.  80,  Q.  7:  "Cunningham,"  on  Wednesday  before  election, 
says  he  took  down  the  names  of  about  one  hundred  who  were  refused  reg- 
istration, many  of  whom  he  accompanied  to  the  registrar  for  that  pur- 


312  DIGEST    OF   ELECTION    CASES. 

pose  (that  he  stayed  at  the  court-house  all  day  for  that  purpose),  at  re- 
quest of  Buchanan. 

LA  FAYETTE  COUNTY. 

Kecord,  p.  51,  Q.  4:  "ricruggs"  says  State  hoard  appointed  ignorant 
man  as  Kepublicau  representative  on  board  county  commissioners  over 
protest  of  Eepublicans. 

Record,  p.  71,  re-examination,  Q.  1,  2,  and  3:  Republican  commis- 
sioner shows  that  he  was  appointed  at  solicitation  of  Democrats  only, 
and  that  no  Republican  recommended  him. 

Record,  p.  211,  Q.  9:  Shows  McGowan  to  be  a  man  utterly  devoid  of 
character.  McGowan  was  one  of  the  Democratic  commissioners  of  that 
county. 

Record,  p.  60,  Q.  1,  2,  3,  and  4:  McGowan  presided  as  associate  no- 
tary (deputy  chancery  clerk)  in  taking  this  testimony,  where  his  own  acts 
was  directly  the  subject  of  investigation. 

Record,  p.  210:  "Nunnally"  says  he  would  not  believe  "McGowan" 
on  oath. 

Record,  p.  70,  Q.  2  and  3,  4  and 5:  "Jefferson,"  Republican  commis- 
sioner^ says  the  Democratic  commission  appointed  the  inspectors  with- 
out consulting  him  and  refused  to  appoint  any  one  recommended  by  Re- 
publicans. Registration  of  Republicans  avoided  by  taking  registration 
books  to  Democratic  meetings  and  other  places.  Code  Miss.,  sec.  H  and 
12,  requires  registration  boolcs  to  he  Jceptat  office  of  circuit  clerk  and  nquires 
all  electors  desiring  to  register  to  come  to  the  court-house  {clerli^s  office). 
The  books  are  part  of  the  records  of  his  office,  and  are  made  in  a.  statu- 
tory/orm,  one  for  each  district  in  the  county  ^  and  all  persons  regfetering^ 
are  required  to  sign  this  hook. 

Record,  p.  52,  Q.  6:  "Scruggs"  says  registration  books  were  taken 
to  Democratic  speaking  at  Stoner's  Mill  the  day  that  the  Bepuhlicitns  had 
speaking  at  Oxford. 

Record,  p.  307,  Q.  10 :  Contestee's  witness  "Andrews"  says  books  were 
taken  to  Abbeville,  College  Hill,  Alexander's  Store,  and  Free  Springs 
on  more  than  one  occasion. 

TALLAHATCHIE  COUNTY. 

Record,  p.  187,  Q.  5, 6,  and  7 :  "  Turner"  says  State  board  appoints  an 
ignorant  man  as  the  Republican  representative  as  county  commissioner 
over  protest  of  Republicans. 

Record,  pp.  196  and  197,  re-examination,  Q.  1 ;  cross-examination,  Q. 
1:  "Downy,"  the  Republican  commissioner,  shows  his  utter  ignorance, 
and  that  he  cannot  read  writing. 

Record,  pp.  421  and  422,  cross-examination :  "  Sanders  "  shows  that 
*'  McAfee,"  one  of  the  Democratic  commissioners,  while  acting  as  such 
in  3879,  sent  the  wrong  poll-books  to  several  precincts  by  the  Democratic 
candidates,  and  in  consequence  thereof  they  held  no  election  at  these 
precincts. 

Note. — "No  Republican  vote  was  cast  in  this  county  for  President  or 

Congressman  in  1876,  by  reason  of  wholesale  destruction  of  Republican 
tickets. 

Record,  p.  414 :  "  Loudon,"  cross-examination,  Q.  1  and  2,  on  this  sub- 
ject. 

Record,  p.  421,  Q.  2 :  "  Danders,"  county  registrar,  closes  the  regis- 
tration of  voters  five  days  before  election. 


BUCHANAN  VS.  MANNING.  313 

PANOLA  COUNTY. 

Record,  p.  167,  Q.  4:  "Brown,"  commissioner,  says  registrar  turned 
over  the  registration  books  to  commissioners,  for  revision,  ten  days  be- 
fore tlie  election,  and  (Q.  6)  says  the  registrar  did  no  more  registering 
after  that  time.  See  Q.  1,  cross-examination :  Says  the  commissioners 
did  some  registering  during  that  time,  but  they  were  only  revising  regis- 
tration. X  Q.  6:  Election  laws,  section  124,  only  authorize  commis- 
sioners to  register  persons  on  appeal  (where  the  registrar  has  refused 
them  registration). 

Record,  p.  142,  Q.  11 :  "  Pipkin"  says  books  were  turned  over  to  com- 
missioners ten  days  before  the  election,  and  (p.  143,  Q.  12)  the  board 
were  transferring  names  during  that  time;  that  re^t»<rar  helped  them 
register  one  day. 

Record,  p.  157,  Q.  3,  4,  and  5  :  "  Small"  says  Brown  and  Ruffiu,  the 
election  commissioners,  acted  as  inspectors,  and  held  the  election  at  Sar- 
dis  preciuct ;  that  neither  of  them  tcere  sicorn  as  inspectors  ;  that  Riiffin 
was  a  voter  at  another  precinct.     (This  is  not  denied  by  any  witness.) 

TATE  COUNTY. 

Record,  p.  173,  Q.  3 :  Republicans  have  no  representative  on  board  of 
election  commissioners,  but  "  Jones,"  Greenbacker,  is  appointed. 

Registration  closed  as  against  Republicans. 

Record,  p.  398,  Q.  1  and  2,  cross  examination  :  Contestee's  witness 
Clifton  says  he  sent  registration  books  to  country  precincts  by  one 
"  Medders,"  who  is  editor  of  the  Democratic  paper.  This  was  just  prior 
to  the  election. 

Record,  p.  401,  Q.  2  and  3 :  "  Medders"  accompanies  "  Shauds,"  Detn- 
ocratic  "  elector,"  to  his  appointments  all  over  the  county  the  week  pre- 
ceding the  election,  thus  closing  out  all  persons  applying  at  the  regis- 
trar's office  for  registration,  where  the  law  required  the  books  to  be  kept 
and  registration  to  be  done,  and  where  the  law  required  all  persons  to 
come  who  desired  to  register,  from  all  parts  of  the  county. 

It  is  in  evidence  that  "  Johnson,"  one  of  the  Democratic  election  com- 
missioners for  "De  Soto"  County,  was  convicted -at  the  last  term  of  the 
Federal  court  held  at  Oxford,  Miss.,  and  lined  $500,  for  fraudulently  eras- 
ing the  names  of  voters  from  the  registration  and  poll  books  of  that 
county  at  this  election  (see  transcript  court  record  filed  in  case) ;  that 
all  three  of  the  election  commissioners  for  (Panola)  county  were  in- 
dicted and  plead  guilty,  at  the  December  term,  1880,  of  the  same  Fed- 
eral court,  to  the  charge  of  refusing  to  register  voters  at  this  election 
(see  transcript  court  record  filed  in  case) ;  that  the  two  Democratic 
election  commissioners  for  "  Marshall  County  "  were  indicted  and  plead 
guilty  at  the  December  term  of  the  same  court  (1880)  to  the  charge  of 
fraudulently  erasing  names  of  voters  from  the  poll  books  of  that  county 
(see  printed  record,  page  6). 

That  C.  S.  Boweu,  an  election  inspector,  was  tried  and  convicted  at  the 
same  term  of  this  court  for  ejecting  a  United  States  supervisor  from  the 
polls  in  Marshall  County ;  and 

That  Seaborn  Clark  and  N.  Mims,  inspectors  of  election,  plead  guilty 
to  charge  of  ejecting  United  States  supervisor  from  the  poll  in  Marshall 
County  at  the  same  term  of  court.     (See  printed  record,  page  6.) 


314  DIGEST  OF  ELECTION  CASES. 

That  "  Maxwell,"  the  registrar  for  "  De  Soto  County,"  is  now  under 
indictment  in  the  same  court  for  registering  voters  by  proayy  and  for  de- 
nying registration  to  one  class  of  voters.     (See  record  transcript  filed.) 

We  here  give  the  evidence  of  G.  0.  Chandler,  the  district  attorney  for 
the  northern  district  of  Mississippi,  showing  what  seems  to  your  com- 
mittee a  prevailing  sentiment  (in  the  second  Mississippi  district  and 
adjoining  districts)  as  to  the  right  of  parties  to  interfere  with  poll- 
books,  election  officers,  and  ballot-boxes.  The  record  filed  with  the  com- 
mittee shows  that  a  part  of  these  election  officers  were  permitted  to  plead 
guilty — "  nolo  contendereJ^  We  can  well  immagine  why  a  humane  judge 
should  be  so  considerate  as  to  permit  such  a  plea  to  be  entered,  in  view 
of  a  Mississippi  statute  affixing  the  penalty  of  disfranchisement  for 
oifenses  of  this  kind. 

The  record,  pages  382  and  387,  shows  that  the  parties  from  "  Marshall " 
<Jounty  were  defended  by  volunteer  and  able  counsel,  who  testify  that 
they  defended  these  men  without  fee  or  reward,  because  they  saw  they 
thought  they  were  being  ijersecuted.  It  is  shown  that  three  law  firms 
of  the  city  of  Holly  Springs  tendered  their  services  in  the  defense  of 
these  cases. 

Page  5 : 

Q.  C.  Chandlkr,  being  sworn  according  to  law,  testifies  as  follows : 

Question  1.  Where  do  you  reside,  and  how  long  have  you  resided  in  the  State  of 
Mississippi? — Answer.  I  reside  at  Corinth,  Miss.,  and  I  have  resided  constantly  in  the 
State  the  last  forty-five  years. 

Q.  2.  What  official  position  do  you  now  hold  under  the  laws  of  the  United  States? — 
A.  I  am  United  States  attorney  for  the  northern  district  of  Mississippi. 

Q.  3.  In  your  official  capacity  as  district  attorney  of  the  United  States  for  the  court 
of  the  northern  district  of  Mississippi,  if  to  your  knowledge  there  were  any  indict- 
luentb  found  by  the  grand  jury  at  the  December  term,  1880,  of  said  court  for  viola- 
tions of  the  election  laws  of  the  United  States,  state  how  many,  for  what  particular 
ofi^inse,  in  what  counties,  and  disposition  (if  any)  was  made  of  such  cases,  together 
with  the  names  of  parties  indicted.  State  fully  and  particularly. — A.  For  want  of 
money,  and  on  acconut  of  the  failure  to  co-operate  with  the  court  on  the  part  of  some 
persons  who  should  have  felt  an  interest  in  enforcing  the  law,  there  was  only  a  very 
partial  investigation  of  the  last  Congressional  election ;  but  so  far  as  the  investiga- 
tion was  carried  it  showed  almost  every  conceivable  crime  against  the  purity  of  the 
election.  A  number  of  indictments  were  returned  by  the  grand  jury,  and  I  hand  you 
the  following  account  of  those  where  arrests  have  been  made;  the  others  are  for  the 
present  private. 

Q.  4.  State,  if  you  know,  from  your  information  as  district  attorney,  whether  ornot 
there  were  other  violations  of  the  election  laws  of  the  United  States  and  laws  of  the 
State  of  Mississippi,  in  said  district,  committed  at  the  election  in  November,  1880 ; 
and,  if  yea,  state  why  the  grand  jury  failed  to  institute  further  proceedings.  State 
fully  and  particularly  your  knowledge  ou  the  subject.— A.  The  grand  jury  did  not 
return  all  the  indictments  the  evidence  before  them  warranted.  They  examined  wit- 
nesses only  from  eight  or  nine  counties,  and  they  were  adjourned  when  the  funds  to 
pay  witnesses  and  jurors  were  exhausted.  In  many  counties  the  election  was  con- 
ducted fairly,  and  in  others  all  election  laws.  State  and  Federal,  were  violated.  Men 
of  one  class  were  registered  illegally,  and  of  another  class  refused  registration.  Un- 
der the  State  statute  that  authorized  the  revision  of  the  poll-books  the  names  of  many 
legal  voters  were  crossed  from  the  poll-books,  and  intimidation  and  obstructing  of 
voters,  expelling  United  States  supervisors,  false  counting,  and  ballot-box  stuffing 
were  all  shown  by  the  evidence  before  the  grand  jury  to  have  been  committed. 

JAst  of  election  cases  originated  at  December  term,  1880,  of  the  United  States  distnct  court 
for  the  northern  district  of  Mississippi,  tchere  arrests  have  been  made,  toiih  disposition  of 
the  same. 

Ifo.  1765.  United  States  w.  M.  B.  Collins,  Warner  Matthews,  Jos.  E.  Monroe,  commis- 
sioners of  election  for  Coahoma  County. 

Charge.— F&iliug  to  return  vote  of  the  county — returning  the  vote  of  one  precinot  as 
♦he  entire  vote  of  the  county. 
Plea  of  guilty  by  each  defendant. 


BUCHANAN    VS.    MANNING.  315 

1802.    Alonzo  Gorman,  A.  G.  Hockreoder,  William  Pounds,  Lee  County. 

Charge. — Obstructing  voters  at  the  polls. 

Disniissed  as  to  Hockreoder,  and  jury  and  verdict  of  guilty  as  to  Gorman,  and  not 
guilty  as  to  Pounds. 

1788.     E.  L.  Sykes,  eheriflf  of  Monroe  County. 

Charge. — Threatening  witness  in  election  cases. 

Jury  and  not  guilty  on  plea  of  guilty  in  case  No.  1790,  and  as  the  Government  had 
&  single  witness  to  the  threats. 

1789.  Jas.  Evans,  Jack  Gathings,  Paul  Strong,  Monroe  County. 

Obstructing  voters  at  the  polls. 

Plea  of  guilty  as  to  Evans  and  Gathings,  and  dismissed  as  to  Strong. 

1790.  E.  L.  Sykes,  sherifif,  Monroe  County,  Ben.  Halliday,  Jas.  E.  Sanders,  J.  Sandy 
Watkins,  Woodson  Watson,  Jas.  Evans,  Ben.Bradford,  Jack  Gathings,  Dr.  Strewell, 
inspectors  and  clerks. 

For  ejecting  United  States  supervisor  from  polling  place. 

Plea  of  guilty  as  to  Sykes,  Jas.  Evans,  and  Jack  Gathings,  and  dismissed  as  to  the 
others. 

1794.  G.  C.  Myers,  register,  Marshall  County,  M.  G.  Hordin,  J.  C.  Boxley,  commission- 
ers, Marshall  County. 

Charge. — Refusing  to  register  voters. 

Jury,  and  verdict  of  uot  guilty  on  entering  plea  of  guilty  in  case  1795,  by  Hordin 
and  Boxley,  and  not  guilty  as  to  Myers. 

1795.  M.  G.  Hordin,  J.  C.  Boxley,  commissioners  of  election,  Marshall  County. 

Charge. — Fraudulently  erasing  names  of  voters  from  poll-books. 
Plea  of  guilty  by  each  defendant. 

1771.  C.  S.  Bowen,  jr..  Seaborn  Clark,  Nat.  Muris,  Dr.  Dean,  Marshall  County  electioa 

inspectors  and  clerk. 

Charge, — Ejecting  from  polls  United  States  supervisor. 

Jury,  and  verdict  as  to  Bowen ;  plea  of  guilty  as  to  Clark  and  Muria,  and  not  guilty 
as  to  Dean. 

1786.  George  Askew,  Dorsey  Outlaw,  Green  Davis,  commissioners,  Oktibbeha  County. 

Charge. — Refusing  to  keep  polls  open  as  required  by  law. 
Pending. 

1772.  C.  S.  Bowen,  jr..  Seaborn  Clark,  Marshall  County,  inspectors  of  election. 

For  failure  to  keep  polls  open  as  required  by  law. 

Jury,  and  verdict  of  not  guilty  on  their  entering  plea  of  guilty  in  No.  1771. 

1773.  T.  E.  Maxwell,  registrar  of  Do  Soto  County. 

Fraudulently  refusing  to  register  voters. 
Pending. 

1775.  W.  H.  Johnston,  T.  A.  Dodson,  Anthony  Matthews,  De  Soto  County,  commis- 
sioners of  election  for  De  Soto  County. 

For  fraudulently  making  false  poll-book. 
Jury,  and  verdict  not  guilty. 


316  DIGEST    OF   ELECTION    CASES. 

1774.  W.  H.  Johnston,  T.  A.  Dodson,  Anthony  Matthews,  De  Soto  County,  commis- 
sioners of  election  for  De  Soto  County. 

For  fraudulently  erasing  the  names  of  voters  from  the  poll-hooks. 
Pending. 

1776.  Jas.  Brooks,  N.  Dodds,  inspectors  of  election  at  Horn  Lake,  De  Soto  County, 

Stuffing  hallot-box. 
Pending. 

1777.  Jas.  Brooks,  N.  Dodds,  inspectors  of  election  at  Horn  Lake,  De  Soto  County. 

Refusal  to  keep  polls  open. 
Pending. 

1785.  Geo.  Askew,  Dorsey  Outlaw,  Green  Davis,  Jno.  Gillmore,  Isaac  Sessions,  Oktib- 
beha County  inspectors  and  clerks. 

Stuffing  ballot-box. 
Pending. 

Having  stated  tbe  general  principles  that  govern  our  opinion,  we  now 
proceed  to  give  the  number  of  votes  cast  at  the  various  precincts  where 
frauds  are  shown  to  have  been  committed,  and  where  the  election  ofl&- 
cers  were  either  so  corruptly  or  illegally  appointed,  or  where  their  acts 
while  holding  the  election  causes  such  suspicion  in  our  minds  as  to  de- 
stroy confidence  in  the  returns.  The  number  of  votes  there  found  to 
be  tainted  with  fraud  is  so  great  as  to  justify  the  conclusion  that  the 
election  in  this  case  must  be  set  aside.  (For  returns  see  Eecord,  pages 
391  and  392.) 

MARSHALL  COUNTY. 

Chulahoma 512 

Byhalia 514 

West  Holly  Springs 507 

East  Holly  Springs 512 

Wall  Hill -MO 

Mount  Pleasant 396 

Waterford 192 

Hudsonville 273 

3, 246 

DE  SOTO  COUNTY. 

Horn  Lake ^ 335 

Hernando  Court-House 166 

Olive  Branch 186 

Oak  Grove 229 

Hernando  Depot 299 

Lauderdale , 145 

Pleasant  Hill 244 

Love  Station 233 

Nesbitt  Station 247 

Lewisberg 158 

Endorn '  240 

Lake  Cormorant '.'. ...  192 

Cochran  precinct 211 


LA  FAYKTTE  COUNTY. 


College  Hill 410 

Oxford !..!..!!]!.".'!''!!  i  no 

Taylor's  Depot .'.'.'.'.'..'.  ..I'.'.'.       349 

Abbeville .".11!'...!"!!*       351 


2,885 


2,220 


BUCHANAN   VS.    MANNING.  317 

PAJfOLA  COUNTY. 

Sardis 624 

Couio 748 

Loiigto  wn 265 

Pleasant  Grove .,. 323 

Springport l:J3 

2,093 

TATE  COUNTT. 

Arkabutla : 183 

Independence 326 

Senatobia 462 

971 

TALLAHATCHIE  COUNTY. 

Charleston*  (countv  seat),  estimated 300 

300 

Total 11,715 

In  making  the  foregoing  statement  we  have  not  included  the  vote  of 
many  precincts  where  good  grounds  exist  for  their  rejection,  and  where 
the  election  might  be  declared  void  upon  the  evidence,  as  at  Law's  Hill, 
Oak  Grove,  Bainsville,  Evans  School-house,  in  Marshall  County;  Spring- 
dale,  Sanders'  Store,  Free  Springs,  and  Dallas  precincts,  in  La  Fayette 
County ;  Stewarts,  Reynolds,  and  Ingram's  Mill,  in  l)e  Soto  County ; 
Ross  Mill  and  Brooklyn,  in  Tallahatchie  County.  The  evidence  of  wit- 
nesses in  relation  to  these  precincts  shows  such  irregularities  as,  when 
considered  in  connection  with  the  evidence  generally,  leads  to  the  belief 
that  there  was  unfairness  intended,  if  not  openly  practiced. 

Were  we  to  adopt  the  rule  laid  down  in  Donnelly  vs.  Washburn  wo 
would  reject  them  all. 

We  have  selected  the  precincts  (where  the  figures  are  given)  because 
at  every  one  of  them  some  transparent  fraud  is  directly  proven,  or  the 
conduct  of  the  election  officers  has  been  such  as  to  so  becloud  them  with 
suspicion  that  they  are,  in  our  judgment  (when  considered  in  connection 
with  the  conduct  of  this  whole  election),  unworthy  to  be  considered  as 
election  returns. 

YALOBUSHA  COUNTY. 

As  to  the  condition  of  affairs  that  prevailed  in  this  county,  we  here 
submit  the  evidence  of  A.  T.  Wimberly,  chairman  of  the  Greenback 
State  executive  committee.  The  returns  from  this  county  (page  392) 
give  contestant  only  81  votes,  while  contestee  has  1,120  votes,  while  the 
census  (p.  293)  shows  there  to  be  some  1,540  colored  voters  in  the  county. 
It  does  not  seem  from  this  evidence  thattho.se  who  deemed  it  necessary 
to  carry  the  election  "  at  all  hazards^^  were  either  respecters  of  persona 
or  political  parties,  or  were  at  all  choice  in  their  methods  of  bringing 
about  the  result,  and  we  can  easily  conceive  how  timid  colored  voters 
would  shrink  from  contact  with  such  a  state  of  icar,  and  either  stay 
away  from  the  polls  or  seek  refuge  in  the  jJi^otection  afforded  by  the  Green- 
backers  and  vote  their  ticket,  if  necessary  to  that  end. 

*  The  vote  of  this  county  is  not  returned  by  precincts. 


318  DIGEST    OF   ELECTION    CASES. 

A.  T.  WiMBERLY,  being  legally  sworn,  testified: 

Question  1.  Where  do  you  now  reside  ;  where  on  the  2d  November,  1880 ;  how  long 
have  you  resided  where  you  now  reside,  and  what  are  your  politics? — Answer.  On  2d 
November,  1880,  I  resided  in  Cofifeeville,  Yalobusha  County,  Miss.,  and  have  resided 
there  since  1868.  I  am  a  Greenbacker  in  politics,  and  have  lived  in  this  district  all 
my  life. 

Q.  2.  What  official  position  do  you  hold  in  your  party  in  Mississippi,  and  what  in 
the  political  canvass  of  1880,  and  what  is  the  extent  of  your  acquaintance  with  the 
Greenback  organization  in  this  second  Congressional  district? — A.  I  am  chairman  of 
the  Greenback  State  executive  committee,  and  was  in  1880.  From  my  correspondence 
as  such  chairman,  and  my  association  with  the  party  in  convention  and  otherwise,  I 
am  very  well  acquainted  with  my  party  organization  in  the  district. 

Q.  3.  What  part  did  yon  take  in  the  interests  of  T.  W.  Harris,  your  Greenback  can- 
didate for  Congress,  in  1880? — A.  I  not  only  canvassed  Yalobusha  County  in  his  be- 
half, but  also  La  Fayette,  and  personally  spent  my  time  in  the  canvass  of  those  coun- 
ties and  by  correspondence  with  Greenbackers  all  over  the  district  during  the  canvass ; 
worked  in'his  behalf.  I  spent  my  time,  my  money,  and  run  the  risk  of  losing  my  life 
in  that  canvass  for  him. 

Q.  4.  What  sort  of  canvass  did  the  Greenbackers  make  as  to  vigor  and  aggressive- 
ness in  this  the  second  Congressional  district  in  the  Congressional  election  of  1880  ? — 
A.  From  my  personal  observation  and  correspondence  in  the  district,  I  think  they 
could  not  have  made  a  more  thorough  canvass  than  they  did.  They  directed  their 
time  and  energy  and  what  little  money  they  had  for  the  success  of  their  candidates. 
T.  W.  Harris,  our  candidate  for  Congress,  made  a  thorough  canvass  of  the  entire  dis- 
trict. 

Q.  5.  What  was  the  character  of  your  canvass  in  person  for  peaceableness  and  quiet- 
ness? If  any  vicjence  was  done  towards. you  or  the  members  of  your  party,  state 
fully  and  particularly  all  you  may  know  on  this  point. — A.  The  canvass  was  any- 
thing else  but  a  peaceable  one,  from  the  beginning  to  the  end.  At  every  political 
meeting  held  in  Yalobusha  County,  where  there  was  a  joint  discussion  between  the 
Greenbackers  and  Democrats,  the  Democrats  never  failed  to  go  armed  not  only  on  their 
own  persons,  but  there  was  a  committee  of  boys  appointed  to  carry  arms  in  saddle- 
bags to  be  used  should  it  be  necessary.  That  forced  us  to  carry  ours  to  defend  our- 
selves with,  and  we  were  not  inclined  to  be  bulldozed  and  run  off  the  track  by  the 
Democratic  mob.  In  Coffeeville,  some  time  in  the  month  of  July  or  August,  the  Dem- 
ocrats advertised  to  have  a  ratification  meeting.  We  were  invited  by  one  of  their 
committee  to  have  a  joint  discnsnion.  We  accepted  the  invitation,  and  after  wo  had 
sent  out  runners  for  our  crowd  to  come  to  the  speaking  on  the  following  Saturday,  the 
chairman  of  the  Democratic  committee,  late  Friday  evening,  about  sunset,  notified  me 
as  a  member  of  our  committee  that  they  would  not  permit  any  discussion  on  the  fol- 
lowing Saturday,  when  it  was  too  late  for  our  committee  to  give  notice  to  our  people. 
On  Saturday  morning,  after  the  crowd  had  gathered  in  on  both  sides,  I  went  to  the 
chairman  of  the  Democratic  committee  and  said  to  him  that  as  there  was  a  misunder- 
standing, or  rather  a  refusal  on  their  part  to  grant  a  division  of  time,  we  would  have 
a  speaking  of  our  own,  but  that  as  it  was  their  appointment  we  would  let  them  take 
choice  between  the  grove  and  the  court- h<iuse  as  to  where  they  should  hold  their 
meeting.  He  notified  me  that  they  would  hold  their  meeting  in  the  grove.  I  at  once 
started  a  little  negro  boy  up  the  street  ringing  a  bell  to  notify  the  Greenbackers  that 
we  would  hold  our  meeting  in  the  court-house.  Two  or  three  Democrats  stopped  him 
and  forbid  him  ringing  the  bell.  Just  after  our  meeting  adjourned  I  discovered  the 
Democratic  crowd  from  the  grove  making  way  up  the  street  leading  to  the  court-house, 
using  very  insulting  language  against  the  Greenbackers.  We  passed  them,  and  when 
we  dispersed  at  the  depot  five  or  six  of  the  Democrats  commenced  firing  on  Mr.  Pier- 
son,  a  Greenbacker,  and  other  Greenbackers,  swearing  that  if  they  could'nt  beat  u» 
voting  they  would  kill  us.  This  shooting  resulted  in  the  wounding  of  Mr.  Pierson 
and  some  half  dozen  others,  both  Greenbackers  and  Democrats.  On  the  following 
Monday  a  mob  of  some  HOO  Democrats  came  to  Cotteeville  and  sent  a  committee  to  me 
a  second  time  to  say  that  unless  I  renounced  my  political  principles  I  would  be  a  dead 
man  before  midnight.  I  did  not  comply  with  their  demand,  nor  did  they  put  their 
threat  into  execution. 

Q.  6.  State  the  character  for  intelligence  of  the  Greenback  white  voters  of  the  dis- 
trict.— A.  They  are  of  the  very  best  material  of  the  merchants  and  farmers  of  the  dis- 
trict ;  also  lawyers  and  doctors. 

Q.  7.  What  is  the  Greenback  white  vote  of  Yalobusha  County  ?  State  as  near  as 
you  can  estimate.— A.  The  Greenback  white  vote  of  Yalobusha  County  is  between  500 
and  700  votei-s. 

Q.  8.  From  what  counties  did  Colonel  Harris,  candidate  for  Congress,  chiefly  receive 
his  vote  from  among  the  colored  voters  given  at  that  election  ?— A.  Colonel  Harris 
received  what  colored  votes  he  did  receive  at  last  election  from  among  the  colored 
Totera  in  Yalobusha  and  Panola  Counties. 


BUCHANAN   VS.    MANNING.  319 

Cross-examined : 

X  Q.  1.  Did  not  nearly  all  of  the  colored  people  of  Yalobnsha  County  vote  forT.  W. 
Harris,  November  2,  1880,  for  Congressman  f — A.  Between  five  and  seven  hundred 
voted  for  him. 

X  Q.  2.  Did  he  not  receive  a  considerable  colored  vote  in  Panola  County  T — A«-  Ftoik 
the  returns  and  all  the  information  I  have,  he  did. 

X  Q.  3.  Did  you  not  have  a  fair  election  and  a  fair  count  in  Yalobnsha  County  ? — A. 
So  far  as  I  know  we  did  ;  we  made  them  give  it  to  us. 

X  Q.  4.  Do  you  know  T.  J.  Settle,  of  Panola  County,  and  is  he  not  a  prominent  and 
leading  Republican  politician,  and  is  he  not  of  the  colored  race  ? — ^A.  Yes,  sir. 

X  Q.  5.  Are  you  not  chancery  clerk  of  Yalobusha  County  ? — A.  I  am. 

A.  T.  WIMBERLY. 

Your  committee  would  hesitate  to  reject  the  vote  of  any  one  county 
upon  the  evidence  of  a  single  witness,  but  the  exceptionally  high  charac- 
ter of  the  witness,  and  the  most  extraordinary  state  of  affairs  shown  to 
have  existed  by  his  proof,  and  as  is  shown  by  his  returns  on  page  329^ 
strongly  incline  us  to  the  opinion  that  it  should  be  rejected. 

FAILURE  OF  CLERKS  OF  ELECTION  TO  KEEP  LISTS  OF  VOTERS. 

The  willful  refusal  of  the  clerks  of  election  to  make  two  lists  of  the 
voters  by  name,  as  they  voted  (and  as  is  required  by  section  136,  Miss. 
Laws),  after  having  been  shown  the  law  by  supervisors  (Evidence,  pp. 
38,  40,  42,  63,  110,  135,  159,  163,  165,  166,  170,  and  374),  is  a  very  sus- 
picious circumstance  in  connection  with  this  election.  It  is  through 
these  lists  that  stuffing  ballot-boxes  can  be  easily  detected ;  or  if  persons 
are  permitted  to  vote  who  are  not  entitled  to  vote,  it  will  appear  by 
these  lists ;  and  your  committee  does  not  forget  that  in  the  case  of 
Lynch  vs.  Chalmers  the  evidence  shows  that  at  some  of  the  precincts  in 
the  6th  Mississippi  district  the  county  canvassing  board  rejected  the  re- 
turns and  refused  to  count  the  vote  because  the  clerks  had  failed  to  retivrn 
the  lists  of  voters  with  the  ballot-boxes. 

CHANGE  OF  POLLING  PLACES. 

There  is  evidence  tending  to  establish  the  fact  that  some  of  the 
voting  places  were  changed  just  prior  to  the  election,  and  that  much 
confusion  was  thereby  caused  among  the  voters.  Many  of  them  were 
not  aware  of  the  change,  and  in  some  instances  they  did  not  know 
where  the  new  polling  places  were  established.  Just  how  far  this 
affected  the  result  of  the  election  we  are  unable  to  tell  from  the  evi- 
dence. We  can,  however,  readily  imagine  how  a  resort  to  changing  the 
polling  places  just  before  an  election  in  a  county  would  cause  such  con-' 
fusion  and  unfairness  as  would  defeat  the  popular  exi^ression  of  the 
will  of  the  people  through  the  ballot-box.  (P.  123,  Q.  7  to  10 ;  p.  457,. 
Q.  3  to  5  ;  p.  231,  X  Q.  12.) 

The  report  made  by  the  chairman  of  this  committee  in  the  case  under 
consideration  uses  the  following  language : 

UXITERATE  EI.ECTION  OFFICERS. 

There  is  no  doubt  in  our  minds,  from  the  evidence  in  this  case,  that  many  of  the 
Republican  precinct  inspectors  were  appointed  as  such  because  they  could  neither 
read  nor  write.  This  is,  in  our  judgment,  a  clear  abuse  of  the  law,  and  without  the 
supervisor's  law,  which  enables  the  opposing  party  to  have  men  of  their  own  selection 
to  guard  the  polls  as  supervisors,  we  would  be  strongly  inclined  to  apply  a  corrective 
for  tbis  manifest  abuse  of  power. 

With  tickets  exactly  similar  in  all  respects,  or  as  nearly  so  as  they  can  be  print«d, 
and  en  the  same  kind  of  paper,  it  would  not  be  a  hard  task  for  election  officers,  if 


320  DIGEST    OF    ELECTION    CASES. 

they  were  so  disposed,  to  cheat  an  illiterate  man,  who  could  neither  read  nor  write, 
both  in  the  vote  and  in  the  count.  All  good  people  ought  to  discountenance  and  cry- 
down  evil  practices  of  this  kind.  We  indulge  the  hope  that  it  will  not  be  repeated 
in  the  future. 

We  concur  with  the  chairinau  in  his  opinion  of  the  abuse,  but  we  dif- 
fer from  him  in  believing  that  the  presence  of  the  United  States  super- 
visors in  any  way  palliated  the  offense,  or  took  away  the  necessity  for 
the  application  of  the  proper  correction,  and  while  we  join  in  his  hope 
*'  that  it  will  not  be  repeated  in  future,"  we  think  the  best  method  of 
securing  the  fulfillment  of  that  hope  is  to  take  from  the  conspirators  the 
fruits  of  their  ungodly  work,  and  we  cannot  agree  with  him  in  the  state- 
ment of  the  report  as  follows  : 

DONNELLY-WA8HBURN  CASE. 

We  are  not  willing  to  go  as  far  in  this  case  as  the  majority  of  the  committee  did  in 
the  Forty-sixth  Congress  in  the  case  of  Donnelly  vs.  Washburn.     It  was  there  held — 

"The  very  fact  that  in  these  seven  precincts  Mr.  Donnell.y  had  been  deprived  by  the 
city  council  of  Minneapolis  of  all  representation  among  the  officers  conducting  the  election 
is,  in  itself,  a  very  strong  proof  of  conspiracy  and  fraud." 

We  concur  in  opinion  with  the  majority  in  this  case  upon  this  pointy 
because  in  the  case  before  us  there  is  so  much  additional  evidence  of 
like  character,  shown  at  some  forty  precincts,  to  justify  the  opinion  that 
a  conspiracy  existed. 

In  Donnelly  vs.  Washburn,  Forty-sixth  Congress,  report  No.  1791, 
page  25,  the  committee  reject  the  vote  of  a  whole  county  because  the 
vote  of  the  county  was  canvassed  hy  the  county  auditor,  one  justice  of 
the  peace,  and  judge  of  probate,  while  the  law  required  the  vote  to  be  can- 
vassed by  the  county  auditor  and  two  justices  of  the  peace. 

Held,  that  the  probate  judge  being  ineligible  under  the  law,  the  vote 
must  be  rejected. 

Authorities  cited :  Howard  vs.  Cooper,  Thirty-sixth  Congress  ;  Jack- 
son vs.  Wayne  (Clark  &  Hall's  Eeport,  p.  41);  Easton  vs.  Scott,  p.  272  ; 
Sloan  vs.  Eawls,  caseg  1871  to  1876,  p.  144 ;  Delano  vs.  Morgan,  2  Bart- 
lett,  p.  171 ;  Howard  vs.  Cooper,  cases  1864  to  1865,  p.  282 ;  Morgan  vs. 
Delano.    In  Donnelly  vs.  Washburn  the  committee  say : 

It  must  be  remembered  that  in  the  cases  cited,  as  decided  by  former  Congresses,  the 
votes  of  townships  were  cast  out,  becausethe  boards  of  election,  judge,  or  the  clerks  thereof, 
were  not  constituted  according  to  laic.  This  being  the  law  as  to  mere  present  officers,  bow 
much  more  strongly  does  the  principle  apply  to  the  case  of  a  canvassing  board  of  a 
county  where  the  votes  (not  of  one  precinct  alone)  but  of  all  the  precincts  of  the 
county  are  involved.  *  •  »  How  important,  then,  does  it  become  that  the  county 
board  of  canvassers  shall  be  constituted  in  strict  conformity  tvith  laip,  and  that  no  usurp- 
ers shall  be  permitted  to  intrude  into  and  control  its  deliberations. 

We  only  refer  to  the  foregoing  cases  to  show  the  action  of  former 
Congresses,  and  not  for  the  purpose  of  deciding  this  case  on  rule  laid 
down. 

We  think  the  evidence  in  this  case  so  clearly  establishes  a  conspiracy 
to  defraud  the  electors  of  that  district  of  their  votes,  and  through  which, 
as  the  proof  shows,  very  many  thousands  were  so  defrauded,  that  we  are 
entirely  safe  in  basing  our  conclusion  upon  this  ground  alone.  In  addition 
to  the  figures  we  have  already  presented  by  precincts,  there  can  be  no 
doubt  from  the  evidence  that  the  registration  was  designedly  stopped 
by  contestee's  friends,  and  for  the  purpose  of  preventing  the  friends  of 
contestant  fronl  registering  just  prior  to  the  election,  and  that  thousands 
of  contestant's  friends  were  thereby  deprived  from  registering;  and  the 
proof  also  shows  that  hundreds  of  (Republican)  voters  who  had  previ- 
ously registered  were  not  permitted  to  vote  because  their  names  had  been 


BUCHANAN    VS.    MANNING.  321 

arbitrarily  or  fraudulently  erased  from  the  poll-books  of  their  respective 
Xireciucts  by  the  commissiouers  of  electious,  which  fact  was  not  discov- 
ered until  these  voters  came  to  the  polls  to  vote. 

In  brief  submitted  by  counsel  for  contestee  it  is  argued  in  justifica- 
tion of  the  numerous  adjournments  and  carrying  away  of  the  ballot- 
boxes,  that  such  conduct  was  authorized  by  the  following  clause  in  the 
law  of  Mississippi,  revised  code,  1880,  section  126 : 

If  an  adjoiirament  shall  take  place  after  the  opening  of  the  poUs,  and  before  ^11 
the  votes  shall  l>e  counted,  the  box  shall  be  securely  closed  and  locked,  so  as  to 
prevent  the  admission  of  anything  into  it  during  the  term  of  adjournment,  and  the 
box  shall  be  kept  by  one  of  the  inspectors,  and  the  key  by  another;  and  the  inspector 
Laving  the  box  shall  carefully  keep  it,  and  neither  unlock  it  nor  open  it  himself,  nor 
permit  it  to  be  done,  nor  permit  any  person  to  have  access  to  it  during  the  time  of 
such  adjournment. 

It  is  very  evident  to  the  minds  of  your  committee  that  the  lawmakers 
of  Mississippi  intended  that  ichen  tJie  election  opened  at  nine  o'cloclcj  it 
should  be  I'ept  open  iintil  six  o^clocTc  in  the  evening,  and  that  the  vote  should 
he  immediately  counted  and  returns  made,  as  is  plainly  set  out  in  the  lan- 
guage of  the  statute,  section  136,  embraced  in  this  report.  We  can 
easily  imagine  a  necessity  for  the  adjournment  of  an  election  in  case  of 
riot,  storm,  or  other  abnormal  conditions,  which  would  be  justified  by 
section  126,  but  not  otherwise. 

VOTE   OF  THE  DISTRICT  AT  FORMEE  ELECTIONS. 

There  is  but  little  evidence  on  this  point.  All  the  records  filed  with 
the  committee  teed  to  show  that  the  second  district  is  a  Republican  dis- 
trict ;  they  show  that  General  Grant  earned  the  counties  comprising  this 
district  by  a  majority  of  2,625  votes  in  the  Presidential  election  of  1872. 

That  in  1873  the  regular  Eepublican  candidate  for  governor  carried 
the  counties  comprising  this  district  by  a  majority  of  1,570. 

That  in  1873  the  contestant  in  this  case  carried  the  county  of  Mar- 
shall by  a  majority  of  1,304,  while  returns  filed  in  this  contest /rom  this 
county  give  a  majority  for  contested. 

It  is  developed  by  the  proof  in  this  case  that  a  great  majority  of  the 
votes  cast  for  Harris,  the  Greenback  candidate  for  Congress  at  this  elec- 
tion, were  cast  by  tchite  voters  who,  in  the  years  1872,  1873,  and  1874, 
belonged  to  the  Democratic  party,  and  we  are  unable  to  conceive  how  (un- 
der ordinary  circumstances)  it  was  possible  for  the  district  to  be  Demo- 
cratic in  the  last  {Presidential)  election,  and  we  can  only  account  for  it 
by  the  methods  so  clearly  proven  and  heretofore  set  out. 

We  hold  it  to  be  true  that  when  public  oflBcers  are  shown  to  be  cor- 
rupt men  their  acts  as  oflBcers  are  not  entitled  to  the  same  presumption 
of  fairness  extended  to  officers  of  unimpeachable  character,  and  to  show 
the  character  of  many  of  the  Democratic  county  commissioners  of  elec- 
tion and  the  ignorance  of  the  Republican  commissioners  we  have  given 
extensive  quotations  from  the  evidence. 

Having  pointed  to  the  proof  of,  and  which  we  consider  the  strongest 
possible  circumstantial  evidence  of,  a  conspiracy  to  stuff  the  ballot-boxes 
in  this  district,  we  now  call  attention  to  the  conduct  of  the  otfivjers  hold- 
ing the  election  itself,  and  we  submit  herewith  a  brief  summary  of  the 
testimony,  Avith  references  to  the  pages  of  the  record  where  it  is  to  be 
found,  showing  frauds  as  barefaced  as  ever  disgraced  the  election  of  any 
State. 

From  the  open  and  defiant  firing  of  cannon  into  Republican  voters  at 
Oxford  to  drive  timid  voters  from  the  polls,  the  bullying  of  gray-haired 
H.  Mis.  35 21 


322  DIGEST    OF    ELECTION    CASES. 

men  "who  were  United  States  supervisors,  as  at  Horn  Lake,  by  youth- 
fnl  desperadoes  with  five-shooters,  down  to  the  substitution  of  ballots 
as  they  were  put  into  the  box,  as  at  Byhalia,  and  the  fraudulent  tally- 
list  as  at  HoUy  Springs,  every  possible  scheme  and  device  by  which 
ballots  can  be  stolen  or  falsely  counted  is  found  to  have  been  practiced. 
Section  13C,  code  of  Mississippi,  1880,  is  in  the  following  words  : 

All  elections  by  the  people  of  this  State  shall  be  by  ballot.  The  poll  shall  be  opened 
at  nine  o'clock  in  the  morning,  and  he  kept  open  tintil  six  o'clock  in  the  evening,  and  no  longer ; 
and  every  person  entitled  to  vote  shall  deliver  to  one  of  the  inspectors,  in  the  presence 
of  the  others,  a  ticket  or  scroll  of  paper,  on  which  shall  be  written  or  printed  the  names 
of  the  persons  for  whom  he  intends  to  vote,  which  ticliet  shall  be  put  in  the  ballot- 
box,  and  at  the  same  time  the  clerks  shall  take  doivn  on  separate  lists  the  name  of  every 
person  voting ;  and  when  the  election  shall  be  closed,  the  inspector  shall  publicly  open  t\e 
l>ox  and  numbei-  the  ballots,  at  the  same  time  reading  aloud  the  names  of  the  persons  voted 
for,  which  shall  be  taken  down  by  said  clerks  in  the  presence  of  the  inspectors,  and  if  there 
should  be  two  or  more  tickets  rolled  up  together,  or  if  any  ticket  shall  contain  the 
names  of  more  persons  for  any  office  than  such  elector  had  a  right  to  vote  for,  such 
ballot  shall  not  be  counted. 

The  law  clearly  required  that  when  the  election  begins  in  the  morning 
the  work  shall  go  continuously  on  until  the  votes  are  all  counted,  and 
the  returns  made  out  and  signed. 

Brief  of  Evidence  by  Precincts. 

Marshall  County,  Chnlahoma  Precinct. 

"  Cunningham,"  page  79  :  Was  appointed  United  States  supervisor, 
and  was  not  permitted  to  act,  and  compelled  to  leave  the  room ;  re- 
mained outside  and  kept  tally  of  Kepublican  votes,  they  voting  open 
tickets.  Three  hundred  and  thirty-six  Kepublicans  offered  to  vote,  of 
whom  35  were  rejected  because  their  names  were  not  on  the  i)oll  book. 
Witness  knew  most  all  of  them  personally,  and  they  lived  in  that  voting 
precinct.  Witness  kept  number  of  white  voters,  there  being  one  hun- 
dred and  sixty. 

Polls  adjourned  one  hour  for  dinner,  leaving  the  box  in  the  room — no 
one  in  charge.  Also  adjourned  when  polls  closed  for  supper,  leaving  no 
one  with  the  box.  Vote  counted  in  secret.  Witness  was  raised  in  that 
neighborhood.  (See  diagram,  page  82.)  Eeturns  on  page  391  show 
Democratic  vote  241  ^  Kepublican  vote  271. 

"  Wilkins,"  p.  118  :  Corroborates  above,  as  far  as  he  goes. 

"  Clark,"  p.  Ill :  Corroborates  above,  as  far  as  he  goes. 

Contestee's  witnesses. — "  Hancock,"  p.  369 :  Was  invited  in  to  witness 
the  count  after  fifty  tallies  had  been  counted.  Did  not  see  anything 
wrong  after  that  time. 

"  Mimes,"  p.  339,  and  "  McKee,"  p.  343,  saw  nothing  wrong  at  the 
polling  and  count  of  votes,  and  say  election  was  fair. 

Byhalia  Precinct. 

"  Hardy,"  supervisor,  p.  97 :  Was  supervisor ;  when  vote  was  being 
polled  detected  Inspector  Flow  exchanging  ticket. 

When  vote  was  being  counted  detected  same  officer  several  times  tak- 
ing tickets  out  of  the  box,  and  putting  in  other  tickets.  Twenty-nine 
persons  were  refused  a  vote,  nearly  all  Kepublican s,  most  of  whom  wit- 
ness personally  knew  as  living  in  that  precinct.  Witness  files  list  of 
these,  page  98.  Kepublicans  spoken  of  voted  open  tickets.  Polls  ad- 
journed for  supper. 

Contestee's  witnesses. — "Watson,"  p.  370 :  Supervisor  j  did  not  discover 
anything  wrong. 


BUCHANAN    VS.    MANNING  325 

West  Holly  Springs. 

"  Bentou,"  p.  75  :  Was  United  States  supervisor.  Polls  were  openctl 
and  voting  continued  till  6  p.  m.  Witness  then  desired  the  vote  counted, 
but  inspectors  refused,  and  adjourned  for  supper.  Democratic  inspector 
McKinney  went  out  and  came  back,  stating  that  he  had  consulted 
Colonel  Manning  (contestee)and  General  Featberstone  (chairman  Demo- 
cratic executive  committee),  and  upon  their  advice  they  adjourned  for 
8upper.  After  supper  the  count  was  proceeded  with,  the  door  being 
locked,  and  no  one  admitted  save  the  election  officers.  Ballots  were  all 
passed  to  witness,  which  he  counted  carefully,  and  also  kept  tally  of 
same.  Witness's  tally-list  showed  that  there  were  50  more  votes  cast  for 
Buchanan  than  the  clerks  had  put  on  their  tally-list,  and  called  atten- 
tion to  the  fact,  but  they  failed  to  take  any  measures  to  correct  it.  Re- 
publican inspector  refused  to  sign  the  returns.  There  were  40  or  50 
colored  Republicans  refused  a  vote,  chiefly  because  their  names  were 
not  on  poll-book.  No  white  man  was  so  refused  on  any  account.  These 
men  claim  to  have  been  duly  registered.  Witness  knew  most  of  them 
as  citizens  of  that  election  district. 

"  Guyton,"  Republican  inspector,  p.  121:  Corroborates  foregoing  wit- 
ness as  far  as  he  goes,  and  was  importuned  and  threatened  to  sign  the 
returns,  but  never  did  sign  them.  Republican  inspector  at  this  precinct, 
could  neither  read  nor  write. 

Contestee's  witnesses. — "Walters,"  p.  357:  Says  witness  Benton  did 
call  the  attention  of  election  officers  to  the  discrepancy  mentioned  m 
his  testimony. 

"  McKinney,"  Democratic  inspector  referred  to  in  witness  Benton'* 
testimony,  is  examined,  and  does  not  deny  that  Manning  and  Feather- 
stone  advised  them  that  they  could  adjourn  for  supper,  but  saw  nothing- 
wrong. 

"  McGowan,"  p.  352  :  Thinks  the  election  entirely  fair. 

"  Williamson,"  p.  356  :  Concurs  in  the  opinion  of  witness  McGowan^ 

Uast  Holly  Springs. 

"  Wilkinson,"  p.  91 :  Was  supervisor.  Kept  tally-list  of  all  persons- 
voting  that  day ;  tally-list  was  tampered  with  just  as  polls  closed.  Two 
of  election  officers  were  brothers-in-law  to  contestee,  one  of  whom  had 
been  one  of  the  county  election  commissioners  till  a  short  time  before  5 
door  was  locked  and  public  excluded  when  vote  was  counted  ;  no  one 
permitted  present  except  election  officers.  About  30  persons,  mostly 
colored  (most  of  whom  were  known  to  witness  as  belonging  to  that  elec- 
tion district),  were  refused  a  vote;  all  claimed  to  have  been  registered, 
but  names  were  not  on  poll-book.  There  were  sixty  more  ballots  counted 
out  of  the  box  than  there  were  persons  v^oting;  witness  watched  polling 
and  counting  of  votes  "  as  close  as  hawk  ever  watched  a  chicken."  See 
diagram,  p.  91 ;  Republican  inspector  at  this  precinct  could  neither  read 
nor  write. 

"  Harris,"  p.  222  :  As  to  high  character  of  witness  Wilkinson. 

Contestee^s  witnesses. — J.  R.  Wallace,  p.  355;  M.  F.  Wallace,  p.  336; 
McGowan,  p.  350 ;  McCarroll,  p.  314 :  Two  of  the  foregoing  officers  at 
this  precinct  were  brothers-in-law  to  the  contestee.  None  of  these  wit- 
nesses discovered  anything  wrong,  a"nd  say  the  election  \vas  fair. 

Wall  Hill  Precinct. 

"  Jameson,"  supervisor,  p.  94 :  "  No  list  of  voters  was  kept ;  "  ad- 
journed three-quarters  of  an  hour  for  dinner ;  27  colored  Republicans 


324  DIGEST    OF    ELECTION    CASES. 

applied  to  and  could  not  vote,  names  not  being  on  poll- book  ;  witness 
knew  some  15  of  them  ;  Republican  inspector  could  not  read  and  write. 
Contestee  introduces  no  witnesses  this  precinct. 

Lams  Hill  Precinct. 

''Austin,"  p.  126 :  Twelve  persons  were  refused  vote  because  names 
were  not  on  poll-book.  All  colored  but  two.  Witness  knew  that  some 
of  them  resided  in  that  election  district. 

"  McGhee,"  p.  108 :  About  the  same  as  the  above.  Republican  in- 
spector could  not  read  and  write. 

No  witnesses  for  contestee  at  this  box. 

Oak  Orove  Precinct. 

"  Wells,"  p.  109 :  Five  Republicans  (voters  of  this  district)  refused 
vote  because  their  names  were  not  on  poll-book.  Republican  inspector 
could  not  read  or  write. 

Mount  Pleasant  Precinct. 

"  Mull,"  p.  109 :  Was  supervisor.  Was  tax-collector  that  district  for 
ten  years.  Clerks  refused  to  keep  list  of  voters,  after  witness  showed 
them  the  law  requiring  it  to  be  kept.  Some  15  whites  were  permitted 
to  vote  whom  witness  did  not  know.  Fourteen  blacks  and  three  whites 
were  not  permitted  to  vote ;  they  were  registered  voters,  but  names  did 
not  appear  on  the  poll-book. 

"Albright,"  p.  119 :  Witness  was  inspector,  and  came  to  Holly  Si>rings 
after  box  and  poll-book;  box  was  delivered  to  him,  but  no  poll -book 
was  in  it ;  poll-book  was  brought  to  precinct  morning  of  election  by  one 
Walker,  a  prominent  Democratic  politician  of  that  precinct ;  17  i)ersons 
were  refused  a  vote  ;  Republican  inspector  could  not  read  and  write. 

Contestee's  witnesses. — "  Bassett,"  p.  375 ;  "  Howse,"  p.  372 ;  "House," 
p.  372 :  Thought  the  election  was  fair. 

Early  Grove. 

"  Briggs,"  p.   Ill :  Supervisor ;  seven    Republicans    refused    vote  j 
names  not  on  book. 
Contestee  no  witness  at  this  box. 

Waterford  Precinct. 

"  Lacey,"  p.  112  :  Was  supervisor ;  twenty -nine  persons  refused  a 
vote ;  names  not  on  poll-book ;  witness  knew  them  all  as  residents  of 
that  election  district ;  some  nine  of  them  went  to  Holly  Springs  and 
procured  certificates  of  their  having  been  registered  •  from  the  county 
registrar,  and  came  back  and  presented  them  to  the  officers  of  election, 
but  were  not  then  permitted  to  vote. 

"  McKenney,"  p.  126  :  Adjourned  for  dinner  and  box  left  in  room  ; 
no  one  with  it ;  Republican  inspector  could  not  read  and  write. 

Contestee  has  no  witness  at  this. precinct. 

Hudsonville  Precinct. 
"Boxley,"  p.  115:  Inspector.    When  polls  closed  all  persons  were 


BUCHANAN    VS.    MANNING.  325 

ordered  out  of  room  save  election  oflBcers ;  Gray  and  Selby,  iDtelligent 
Kepublicans,  asked  permissiou  to  remain,  but  were  ordered  out,  and 
the  vote  counted  in  secret.  It  will  be  observed  that  this  inspector  was 
the  only  person  opposed  to  Democrats  who  was  permitted  to  be  there, 
and  he  could  neither  read  nor  write. 

Contestee's  icitnesses: — "Gibbons,"  p.  348;  "Mahon,"  p.  388:  Discov- 
ered nothing  wrong  at  this  precinct,  and  say  election  was  fair. 

Evans's  Schoolhouse  Precinct. 

"  Pegnes,"  p.  116 :  Some  five  Eepublicans  were  refused  a  vote  who 
claimed  to  be  registered ;  their  names  not  on  poll-book;  was  a  general 
turn-out;  Republican  inspector  could  neither  read  nor  write. 

Oontestee  no  witnesses  at  this  box. 

Bainesville  Precinct. 

"Carrington,"  p.  117:  Fourteen  Republicans  and  two  Democrats 
were  refused  a  vote;  names  not  on  poll -book;  all  claim  to  be  regis- 
tered, many  of  whom  witnesses  knew  as  citizens  of  that  election  district; 
Republican  inspector  could  neither  read  nor  write. 

No  witnesses  for  contestee. 

DE  SOTO  COUNTY. 

Horn  Lake  Precinct. 

"Davis,"  p.  31:  Supervisor.  Pollsopened  one-quarter  before  lOo'clock. 
Adjourned  from  one-quarter  before  1  till  2  o'clock.  After  closing  of  polls 
box  was  taken  by  "Brooks,"  Democratic  inspector.  Witness  "don't 
know  where  to."  Brooks  remarking,  "By  God,  this  belongs  to  me  to- 
night." "It  was  dark  and  rainy."  Witness  went  to  the  residence  of 
one  Holliday,  and  in  about  three-quarters  of  an  hour  saw  Brooks  and 
Dodge,  Democratic  inspectors,  come  in  with  the  box.  When  box 
was  opened  all  the  tickets  on  top  appeared  to  he  Democratic  tickets  except 
five.  There  was  much  confusion,  officers  and  bystanders  preventing 
witness  from  seeing  the  box.  Two  Greenback  tickets  thrown  out  and 
not  counted.  About  35  Republicans  were  refused  a  vote  because  their 
names  were  not  on  the  poll-book.  From  time- wasting  questions,  closing 
polls  at  noon,  and  other  delays,  between  75  and  100  Republicans  went 
home  without  voting.  There  were  also  32  Republicans  waiting  to  vote 
when  polls  closed,  and  did  not  get  to  vote.  Witness  was  cursed  and 
abused,  and  threatened  with  pistol  by  one  Douglass  during  count  of 
vote.    There  was  a  large  turn-out  of  voters. 

"Turner,"  p.  33:  Inspector.  Corroborates  much  of  "Davis's  testi- 
mony ;  says  box  was  not  sealed  when  Brooks  took  charge  of  it.  Wit- 
ness could  not  read  or  write. 

"  McCain,"  p.  404 :  Says  adjourned  about  one  hour.  Corroborates  last 
witness. 

Contestee's  witnesses  for  this  precinct  are  "  Bowie,"  p.  248;  "Clin- 
ton," p.  L'49;  "Foster,"  p.  256;  "Shaw,"  p.  259;  "  Halbert,"  p.  276; 
"  Woolbridge,"  p.  280.  These  witnesses  contradict  contestant's  witness 
(Davis),  and  testify  that  they  saw  nothing  wrong  at  the  election  or 
count. 


326  DIGEST    OF   ELECTION    CASES. 

Hernando  Court-House. 

''  Dockery,"  p.  28 :  Republican  inspector.  Could  neither  read  nor  write. 
Knows  nothing  of  result  of  election  save  what  others  told  him.  Polls 
adjourned  for  dinner,  and  one  hour  for  supper.  During  adjournment 
box  was  placed  in  room,  and  no  one  with  it.  AVitness  wanted  to  stay 
with  box,  but  oflBcers  insisted  that  no  one  should  remain.  Box  was  not 
sealed.  A  number  of  voters  of  long  standing  at  the  box  did  not  get  to 
vote,  names  not  being  on  the  poll-book.  Large  turn-out  of  Republi- 
cans. 

"  Pratt,"  p.  25,  Q.  9  :  A  large  number  of  Republicans  could  not  vote 
at  the  box  because  their  names  were  not  on  book.  They  were  voters  of 
long  standing  at  the  box.    A  large  turn-out. 

"  Bell,"  p.  29,  Qs.  5  and  6 :  Distributed  Republican  tickets  at  the  box ; 
thinks  35  or  40  Republicans  were  refused  a  vote ;  names  not  on  the  poll- 
book.  Q.  4 :  Was  a  general  turn-out  of  voters.  Republican  inspector 
could  neither  read  or  write. 

Contestee's  only  witness  at  the  box.  ''  Dockery,"  p.  287,  corroborates 
much  of  above  statement. 

Olive  Branch  Precinct. 

"  Hayne,"  p.  35 :.  Was  inspector.  Between  60  and  70  Republicans  were 
refused  a  vote,  because  their  names  were  not  on  the  poll-book ;  also,  quite 
a  number  of  others  left,  saying,  "  It  was  nouse  trying  to  vote  as  so  many 
had  been  refused."    Was  a  general  and  full  turn-out. 

"  Haynie,"  (Greenbacker),  p.  34 :  Was  supervisor ;  says  there  were  56 
Republicans  who  applied  and  were  refused  a  vote,  their  names  not  be- 
ing on  the  book. 

"  Wood,"  p.  445,  Q.  4-5-6 :  Was  president  of  the  Republican  club. 
Republicans  more  interested  than  they  had  been  for  live  or  six  years. 
Saw  Republicans  refused  a  vote  all  day.  Witness  was  refused  there, 
and  voted  there  ever  since  he  was  free,  but  could  not  vote;  name  not  on 
book  this  election. 

Contestee's  witnesses. — "  Pleasants,"  p.  267  :  "  Blecker,"  p.  264 :  Does 
not  contradict  evidence  of  contestant's  witnesses. 

Oah  Grove. 

"  Clay,"  p.  25 :  Supervisor ;  polls  adjourned  one  hour  for  dinner. 
When  polls  closed,  Nail,  Democratic  inspector,  took  the  box  to  his  house, 
1^  miles  off,  being  accompanied  by  one  Kirkland.  When  witness  found 
box  it  was  in  i)ossession  of  one  Weiswaer,  none  of  whom  were  election 
inspectors,  in  a  room  with  the  door  locked.  They  refused  on  first  ap- 
plication to  let  witness  in  room,  but  finally  let  him  in.  The  vote  was 
not  counted  till  about  ten  o'clock.  Seventeen  Republicans  did  not  get 
to  vote;  names  not  on  book.     General  turn  out  of  voters. 

"  Harris,"  p.  45 :  Inspector;  same  testimony,  and  adds,  the  vote  was 
counted  in  i)rivate.  A  number  of  Republicans  did  not  get  to  vote. 
General  turn  out.    Republican  inspector  could  not  read  or  write. 

Contestee's  witnesses. — "Jones,"  p.  274;  "Kirkland."  p.  246  :  Admit 
the  box  was  not  sealed,  but  a  piece  of  paper  tacked  over  the  whole. 
Tliat  Claj-,  supervisor,  objected  to  taking  box  to  Nail's  house ;  but 
neither  of  them  thinks  that  there  was  anv  unfairness  in  the  election. 


BUCHANAN    VS.    MANNING.  327 

Hernando  Depot  Precinct. 

"  Howze,"  p.  20,  Q.  13  to  16 :  Supervisor.  Polls  opened  20  minutes  be- 
fore 10  o'clock.  Poll-book  used  was  a  forgery,  made  by  Johnson,  Demo- 
cratic commissioner  ;  28  colored  Republicans  were  refused  a  vote,  names 
not  on  books.  Vote  not  counted  in  public.  Officers  only  permitted  to 
be  present. 

"  Newson,"  p.  230,  Q.  9  ;  "  Boone,"  p.  36,  Q.  3 :  Same. 

''  Watson,"  p.  440:  Could  not  vote ;  marked  dead  on  poll-book. 

Contestee's  icitnesses. — '-'■  Johnson,"  p.  253 ;  "  Payne,"  p.  283  :  Think 
©lection  fair. 

Reynolds^s  Store. 

"Jones,"  Greenbacker,  p.  35 :  Knows  every  voter  in  the  district  j  turn- 
out of  voters  larger  than  usual ;  kept  list  of  9  Republicans  not  permitted 
to  vote ;  adjourned  one  hour  for  dinner ;  has  full  and  particular  list  of 
every  man  who  voted  Democratic  ticket,  and  only  38  so  voted ;  but  re- 
turns show  57  Democratic  voters. 

"  Durham,"  inspector,  p.  43:  Eleven  persons  refused  a  vote;  witness 
did  not  get  to  vote,  names  not  being  on  poll-book ;  witness  never  saw  or 
Mgned  any  returns  ;  Republican  inspector  could  not  read  or  write. 

Contestee's  witnesses.—''  Boyce,"  p.  238;  "Myers,"  p.  288:  Says,  X  Q. 
11,  that  Durham,  Republican,  signed  returns  by  making  his  mark,  and 
X  Q.  12,  "  I  saw  all  the  officers  sign  the  returns,"  while  Durham  testi- 
fies he  never  did  sign  them. 

Lauderdale  Precinct. 

"Boggan,"  Greenbacker,  p.  36 :  Supervisor.  Polls  were  closed  one 
Lour  for  dinner.  Box  not  sealed,  and  left  in  room  with  no  one  present, 
and  same  was  done  at  adjournment  for  supper.  General  vote  turned 
out. 

"  Williams,"  p.  46 :  Same  testimony,  and  that  some  voters'  names 
could  not  be  found  on  book  ;  was  a  full  turn-out  of  Republican  voters ; 
Rejiublican  inspector  could  not  read  or  write. 

Contestee's  icitnesses. — "  Laughter,"  p.  234 :  Corroborates  above  (sub- 
stantially). Knows  of  no  colored  men  voting  Democratic  ticket  at  his 
box,  and  that  none  but  officers  of  election  were  present  at  count  of 
vote. 

Pleasant  Hill  Precinct. 

"  Todd,"  Greenbaeker.  p.  37 :  Supervisor,  Was  appointed  supervisor, 
but  did  not  serve  on  account  of  threats  and  exhibition  of  brass  knucks. 
Democratic  friends  advised  him  to  leave;  was  busy  all  day  distributing 
tickets. 

"  Dockery,"  p.  44 :  Says  there  were  at  least  75  colored  voters  who 
tendered  Republican  tickets  and  were  not  allowed  to  vote,  their  names 
not  being  on  the  poll-book. 

"  Laughlin,"  p.  455  :  Was  president  of  Republican  club.  Knew  the 
Republican  voters  who  were  refused  a  vote ;  could  not  see  the  box,  nor 
votes  put  in  box;  might  have  seen  them  "  if  I  had  had  a  ladder  about 
Mx  feet  high."  Witness  was  there  all  day ;  shows  that  Dr.  Gray  per- 
mitted only  one  man  to  vote  by  making  affidavit,  and  refused  balance^ 
Republican  inspector  could  not  read  or  write. 


328  DIGEST    OF    ELECTION    CASES. 

Conteste^s  witnesses.—^'  Dv.  Gray,"  p.  268  :  Admits  that  many  Repub- 
lirans  did  not  get  to  vote;  knows  of  two  colored  men  voting  Democratic 
tickets,  but  thinks  the  election  was  fair. 

SteicarVs  Precinct. 

"  Albritton,"  p.  39:  Supervisor.  No  list  of  voters  was  kept;  about 
ten  persons  did  not  get  to  vote — names  not  on  books — and  ten  other 
Republicans  who  did  not  say  (whether  or  not)  they  had  duly  registered 
and  were  not  permitted  to  vote.    No  white  man  was  refused  a  vote. 

"  Scott."  p.  12  :  Republican  inspector ;  could  not  read  or  write,  and 
does  not  i<now  anything  about  the  result. 

No  witnesses  examined  by  contestee  for  this  box. 

Lov^s  Station  Precinct. 

"  East,"  p.  40 :  Greenback  supervisor.  Adjourned  one  hour  for  dinner. 
Box  carried  to  Love's  residence,  some  distance  from  polling  place ;  he 
did  not  go  with  it ;  no  list  of  voters  was  kept.  Fifteen  persons  (mostly 
colored)  refused  vote;  names  not  on  book. 

"  Thomas,"  p.  13 :  Does  not  know  whether  returns  were  correct  or 
not. 

"  East,"  p.  452,  X  Q.  13 :  Thinks  teyhole  to  box  was  not  sealed  at 
adjournment  for  dinner. 

Contestee^s  witnesses. — "Henderson,"  p.  263:  Corroborates  witness 
East  to  some  extent,  and  does  not  think  the  box  was  tampered  with. 

Neshitfs  Station. 

"Bullard,"  p.  40:  Thirty-four  persons,  including  one  white  man,  did 
not  get  to  vote,  names  not  being  on  poll-book.  There  was  a  general 
turnout. 

"  Robinson,"  p.  43 :  Adjourned  one  hour  for  dinner  and  two  hours  for 
supper.  Box  at  dinner  was  placed  in  care  of  one  Bullard,  not  an  oflScer 
of  election.  Box  at  supper  was  given  in  charge  to  Bullard  and  taken 
to  dwelling  for  supper.  Twenty-five  or  thirty  Republicans  who  did  not 
get  to  vote,  names  not  being  on  poll-book.  Republican  inspector  could 
not  read  or  write. 

Contestee's  icitnesses. — "Bullard,"  p.  295  :  Was  not  an  oflScer  of  elec- 
tion. Box  left  in  his  charge  at  dinner  for  about  an  hour.  Only  knew 
of  three  colored  men  who  did  not  go  out  to  vote.  Adjourned  two  hours 
for  supper,  when  he  took  box,  unsealed,  to  Marron's  residence  ;  left  box 
in  room,  no  one  with  it  (in  room  adjoining  dining-room),  while  eating 
supper.    Witness  helped  the  officers  to  count  the  vote. 

Louisherg  Precinct. 

"  Bailey,"  Greenbacker,  p.  41 :  Supervisor.  Polls  opened  about  20 
minutes  after  9  o'clock  ;  adjourned  one  hour  for  dinner  and  one  hour 
for  supper.  Witness  objected  to  these  adjournments,  but  was  overruled. 
About  12  persons  could  not  vote  because  their  names  were  not  on  poll- 
book. 

"  Clifton,"  Greenbacker,  p.  42 :  No  list  of  voters  was  kept.  Was  a 
pretty  full  turnout  of  voters.  Adjourned  for  about  an  hour  at  noon 
and  also  an  hour  at  supper. 

"Clayton,"  p.  47:  Corroborates  above  witness,  and  adds:  At  noon 


BUCHANAN    VS.    MANNING.  329 

adjourned.  Box  was  taken  to  the  residence  of  one  Lauderdale,  and  at 
supper  by  Democratic  Supervisor  Bailey  to  Louis's  residence.  Was 
good  turn-out  of  Republicans.  Only  oflBcers  of  election  were  admitted 
at  the  count  of  the  vote. 

Coniestee's  tcitnesses. — "  S.  J.  Dickey,"  p.  236 :  Republican  inspector  j 
could  not  write  or  read. 

Eudora  Precinct. 

"  Buchanan,"  p.  46 :  Polls  were  adjourned  one  hour  for  dinner,  and 
box  was  abandoned  in  room  near  polling  place,  none  of  the  officers  re- 
maining with  it ;  adjourned  for  supper,  officers  taking  box  with  them^ 
and  counted  vote  near  where  the  election  was  held.  Republican  in- 
spector could  not  read  or  write. 

Coniestee's  icitness. — "  Harral,"  p.  248 :  Corroborates  above  witness 
generally,  but  thinks  election  was  fair. 

Ingram^s  Mills. 

"Morton,"  Democratic  inspector,  p.  41:  No  list  of  voters  kept;  ad- 
journed one  hour  at  noon,  and  also  at  close  of  polls ;  box  being  left  at 
adjournment  in  keeping  of  one  of  the  clerks  and  one  supervisor.  None 
of  the  election  officers  were  Republican. 

Contested 8  witnesses. — "Morton,"  p.  283;  "Kerby,"  p.  243. 

Lake  Cormorant  Precinct, 

"  McDowell,"  p.  10 :  Adjourned  for  supper,  and  box  was  taken  to 
TVither's  residence,  about  a  mile  off,  and  vote  there  counted. 

"Butler,"  p.  11:  Got  to  Wither's  house  before  six  o'clock;  got  our 
suppers  and  then  counted  the  vote.  There  were  some  names,  Republi- 
cans, on  the  poll-book  marked  moved  from  the  district,  but  they  were 
allowed  to  vote ;  Republican  inspector  could  not  read  or  write. 

Cockrum  Precinct. 

"Gray,"  p.  15 :  Adjourned  for  dinner  one  hour;  adjourned  for  supper 
an  hour;  box  during  these  adjournments  was  taken  to  residence  of  one 
Baker,  and  left  there  in  bed-room  with  no  one  in  charge  of  it.  No  per- 
son was  allowed  to  witness  the  count  except  election  officers.  Republi- 
can inspector  could  not  read  or  write. 

Contestee  introduced  no  witnesses  from  this  box. 

LA  FAYETTE   COUNTY. 

College  Hill  Precinct. 

"Stockard":  Supervisor.  Nolistof  voters  kept.  Adjourned  for  one 
hour  when  polls  closed,  which  was  opposed  by  witness.  The  ballot-box 
during  the  time  was  left  in  the  room  where  the  election  was  held,  and 
no  one  was  left  with  it.  The  door  was  locked  by  one  Quarles  (not  an 
election  officer),  who  took  the  key.  There  were  two  doors  to  the  elec- 
tion room  (of  store-house).  The  candle  was  left  burning  when  they  left 
the  room.  Quarles  came  back  and  requested  witness  to  go  back  into 
the  election-room  with  him,  which  he  did,  and  Quarles  blew  the  light  out 
as  they  eame  out.    In  about  ten  minutes  witness  observed  another  light 


330  DIGEST  OF  ELECTION  CASES. 

burning  in  the  election-room,  whieh  burned  hut  a  short  time.  There  was  a 
large  turnout  of  Kepublicau  voters — is  a  large  Eepublican  box.  The 
witness  could  not  see  in  room  where  box  was  during  adjournment.  The 
key-hole  to  box  was  not  sealed  during  the  adjournment.  Kine  or  ten  per- 
sons were  refused  a  vote ;  names  not  on  the  poll-book  (one  white  man 
among  them). 

"  Buford,"  p.  265 :  Corroborates  the  above  as  far  as  he  goes.  The 
Eepublican  inspector  could  not  read  or  write. 

Gontestee's  witness. — "Matthews,"  p.  316;  "Luckie,"  p.  318:  All  say 
the  election  was  fairly  conducted. 

North  Oxford  Precinct. 

The  Republican  inspector  could  not  read  or  write. 

"  Lolt,"  p.  57:  There  was  a  large  turn-out  of  Republicans.  The  can- 
non shooting  bursted  the  plastering  over  our  heads,  and  it  fell  on  wit- 
ness, cutting  his  face.  Tlie  election  was  in  consequence  temporarily 
suspended,  and  the  Republican  supervisor  was  greatly  alarmed. 

Witnesses  Scraggs,  p.  51,  and  Fitzhugh,  p.  55,  as  to  the  terrible  effect 
of  cannon  shooting  into  voters ;  also  Nunnally,  p.  210,  who  met  crowds 
of  voters  going  home. 

Gontestee's  witness. — "  Butler,"  p.  303. 

iSouth  Oxford  Precinct. 

"  Kenneday,"  p.  59:  There  was  an  adjournment  for  about  a  half  hour 
at  the  close  of  polls,  and  the  box  was  placed  in  chancery  clerk's  office, 

"  Hamblet,"  supervisor,  p.  60 :  Adjourned  at  6  o'clock  for  an  hour, 
and  the  box  was  put  in  the  vault  in  chancery  clerk's  office,  and  Brown, 
chancery  clerk,  had  key  to  office.  About  30  persons  were  refused  a 
vote,  their  names  not  being  on  books.  They  were  mostly  Republicans. 
Witness  protested  against  adjournment.  Republican  inspector  could 
not  read  or  write. 

Taylorh  Depot  Precinct. 

"Tyson," p.  66,  Republican  inspector:  Adjourned  for  one  hour  at  din- 
ner, and  along  in  the  evening  adjourned  again  for  an  hour ;  then  opened 
the  polls  again  for  30  or  40  minutes,  when  polls  were  closed,  it  being 
then  6  o'clock.  The  box  remained  in  possession  of  witness  during  the 
adjournment;  vote  was  counted  with  closed  doors,  and  no  one  was  al- 
lowed to  be  present  except  the  election  officers. 

The  Republican  inspector  could  not  read  or  write. 

Springdale  Precinct. 

"  Weathersby,"  p.  67 :  Adjourned  one  hour  for  dinner,  when  Shipp, 
Democratic  inspector,  took  box  to  his  house.  The  Republican  inspector 
could  not  read  or  write.    Contestee  introduced  no  witness. 

Abbeville. 

"Porter,"  supervisor,  p.  100:  Kept  tally  of  Republican  vote;  witness 
also  kept  list  of  36  Republicans  who  were  not  permitted  to  vote,  names 
not  being  on  poll-book;  also  3  whites.  The  night  was  dark  and  rainy. 
Adjourned  for  supper  at  6  o'clock ;  the  box,  being  locked  and  sealed, 


BUCHANAN    VS.    MANNING.  331 

was  left  iu  the  room  where  election  was  held,  in  charge  of  no  one. 
There  were  two  rooms  and  one  window  to  the  house.  Witness  says 
Republicans  polled  207  votes ;  could  distinguish  Republican  tickets 
from  Democratic  tickets ;  box  was  locked  but  not  sealed ;  when  they  re- 
turned to  count  the  votes  Crosby,  Democratic  inspector,  admitted  he 
had  been  iu  there;  there  was  a  general  turn-out  of  the  Republican 
vote. 

"  McDuff,"  inspector,  p.  69 :  Says  they  were  counting  vote  when  he 
returned,  and  that  box  was  left  as  stated  by  witness. 

Porter,  Republican  inspector,  could  not  read  or  write. 

Oontestee's  witnesses. — "  Porter,"  p.  320;  "McGowan,"  p.  321;  "  Hous- 
ton," p.  322;  "Graham,"  p.  323:  Corroborate  above,  and  add  there 
were  307  Republican  votes  cast  and  only  145  Democratic.  Returns,  p. 
391,  show  216  Democratic  and  only  135  Republican  votes  returned. 

"  iStoners,"  p.  324 ;  "  Burkley,"  p.  325 :  None  of  contestee's  witnesses 
discovered  anything  wrong.  McGowan  thinks  everything  was  "  fair 
and  square,"  and  he  is  the  witness  who  told  witness  personally  that  he 
"  would  stuff  a  ballot-box  if  necessary  to  seat  Republicans." 

Sander^s  Store  Precinct, 

"  Cezar  Pegnes,"  p.  69:  Republican  inspector.  Witness  is  nearly  blind. 
Polls  adjourned  one  hour  for  dinner.  Mentions  other  competent  and 
suitable  Republicans  being  there  who  were  intelligent.  Republican  in- 
spector could  not  read  or  write. 

Free  Springs  Precinct. 

"  Caldwell,"  p.  72  :  Polls  adjourned  one  hour  for  dinner.  Democratic 
inspector  taking  box  to  residence  of  one  "  Houston,"  and  witness  took 
poll-books.  Neither  party  turned  out  full  vote.  Republican  inspector 
could  not  read  or  write. 

♦ 
Dallas  Precinct. 

"  Watt,"  p.  74 :  Polls  adjourned  one  hour  for  dinner.  Democratic  in- 
spector taking  box  to  residence  of  one  Langford.  Box  was  not  sealed. 
Vote  was  counted  with  closed  doors.  Republican  inspector  could  not 
read  or  write. 

PANOLA  COUNTY. 

Sardis  Precinct. 

"  Small,"  p.  157  :  Was  supervisor.  The  two  county  election  commis- 
sioners held  the  election  and  are  not  sworn  (this  is  nowhere  contradicted). 
Adjourned  one  hour  or  more  for  supper,  over  protest  of  supervisor. 
Box  is  placed  in  vault  of  clerk's  office,  and  who  has  the  key  is  not  stated. 
There  were  nineteen  more  tickets  in  the  box  than  there  were  persons 
who  voted,  as  shown  by  list  kept  by  clerks  and  supervisors.  Thirteen 
Republicans,  registered  voters,  who  could  not  vote,  names  not  on  poU- 
book.  Neal  and  Russin,  two  Democrats  living  at  another  precinct,  are 
allowed  to  vote. 

Contestee's  witness. — "  Balch,"  p.  147. 


332  DIGEST    OF    ELECTION    CASES. 

Como  Precinct. 

"  Jackson,"  inspector,  p.  168 :  Polls  adjourned  for  supper.  Box  taken 
to  Breckenridge's  (whisky  shop),  and  no  one  left  with  it  (see  diagram, 
p.  168)  during  supper.  Witness  was  first  officer  to  return  from  supper, 
and  is  let  into  the  room  (where  box  was  left)  by  one  "  Spears,"  who  was 
not  an  election  officer.  Witness  cannot  read  writing.  Some  thirty-six 
persons,  chiefly  Republicans,  could  not  vote ;  name  not  on  poll-book. 

"Jones,"  p.  159:  Confirms  foregoing  witness  as  to  adjournment  and 
box ;  clerks  kept  no  list  of  voters ;  witness  saw  twenty-three  persons 
refused  a  vote,  mostly  Republicans ;  names  not  on  books  ;  a  number  of 
Democrats,  planters  and  merchants^  are  permitted  to  remain  in  the  room 
all  day ;  Republican  inspectors  could  not  read  or  write. 

"  Crary,"  ^.  134,  contestee's  witness :  Was  officer  of  election,  but  was 
not  present  when  count  was  commenced. 

Longtown  Precinct. 

"  As.  Kerv,"  p.  163 :  Supervisor.  Polls  adjourned  for  supper.  Box 
taken  off  by  Fowler,  Democratic  inspector.  Witness  does  not  know 
where  box  was  taken.  Witness  and  Republican  inspector  protest  against 
box  being  removed,  but  are  overruled.  No  list  of  voters  was  kept. 
Parties  could  not  vote  on  account  of  adjournment.  Election  was  held 
at  saloon  of  one  Baily.  Rough  words  were  used  because  witness  and 
Republican  inspector  insisted  that  box  should  not  be  removed.  Vote 
was  counted  in  a  different  house  from  where  the  election  was  held. 

"  Littlejohn,"  p.  164  :  Witness  corroborates  foregoing  witness  as  to  all 
material  points. 

Contestee's  witness. — "  Mitchell,"  p.  150. 

Pleasant  Grove  Precinct. 

"  Jones,"  p.  162  :  Supervisor.  Polls  adjourned  one  hour  for  dinner, 
and  box  locked  up  in  room  and  no  one  left  with  it.  Witness  protests 
against  this  adjournment. 

Polls  adjourned  for  supper  one  hour,  and  box  taken  by  Taylor,  Dem- 
ocratic inspector,  to  supper. 

Contestee's  witnesses. — "  Floyd,"  p.  145 ;  "  Carter,"  p.  144 :  Say  election 
was  fair. 

Springport  Precinct. 

"  Loiret,"  supervisor,  p.  166 :  When  polls  closed  adjourned  for  supper. 
Box  not  sealed,  but  deposited  in  room  adjoining  where  election  was 
held,  and  no  one  left  with  it.    No  list  of  voters  was  kept. 

Conteste^s  tcitness. — "  Keaton,"  p.  135. 

TATE   COUNTY. 

Arkdbutla  Precinct. 

"  Dangerfield,"  p.  180 :  Polls  were  closed  one  hour  at  noon,  and  box 
taken  to  Eason's  dwelling  and  locked  up  in  a  room,  no  one  remaining 
with  it.  Also  adjourned  one  hour  for  supper.  Box  taken  to  same  place 
and  left  unguarded.    Contestee  has  no  witnesses. 


BUCHANAN    VS.    MANNING.  333 

Independence  Precinct. 

"  Walker,"  p.  180 :  Polls  closed  one  hour  for  dinner.  Box  taken  to 
dinner  by  Morrison,  Democratic  iuspector.  Also  adjourned  one  and  a 
half  hours  for  supper,  and  box  taken  to  supper  by  Powers,  Democratic 
inspector.    The  iusjiectors  at  this  precinct  were  all  Democrats. 

Contestee  has  no  witnesses  at  this  precinct. 

Senat^bia  Preeinct. 

"  Carrington,"  p.  176  :  Polls  adjourned  for  one  hour  for  dinner,  and 
box  taken  by  Waits,  Democratic  inspector,  who  carries  it  to  his  residence 
over  protest  of  witness. 

Contestee  introduced  no  witness  at  this  precinct. 

8herrod  -Precinct.  *■ 

"  Wright,"  p.  182 :  Was  clerk  of  election,  and  testifies  he  was  not  sworn. 
Polls  adjourned  one  hour  for  dinner,  box  remaining  in  hands  of  super- 
visor and  one  iuspector.  Twenty  Kepublicans  refused  a  vote ;  names 
not  on  poll  book. 

Contestee  has  no  witnesses  at  this  precinct. 

Looxahoma  Precinct. 

"Briggs,"  p.  179:  Says  polls  adjourned  three  quarters  of  an  hour  for 
dinner,  and  box  remained  in  room  where  election  was  held,  witness  and 
others  remaining  with  it,  thinking  election  was  fair.  Witness  thinks 
election  was  fair. 

Taylor^s  Precinct. 

"  Haynes,"  p.  175 :  Supervisor.  Testifies  to  the  plan  laid  by  the  Demo- 
cratic inspector  to  break  up  the  election  by  refusing  to  hold  an  elec- 
tion or  preventing  any  one  else  from  holding  it,  and  that  it  was  frus- 
trated by  the  persistent  efforts  of  this  intelligent  supervisor.  This  is  the 
largest  Republican  box  in  the  county.     (See  returns,  p.  392.) 

We  have  not  thought  it  necessary  to  make  reference  to  evidence  by 
precincts  where  the  election  seems  to  have  been  fairly  conducted,  and 
where  the  election  is  not  challenged  by  contestant,  and  where  he  intro- 
duces no  witnesses. 

TALLAHATCHIE  COUNTY. 

Charleston  Precinct. 

"Pollard,"  p.  193:  Polls  opened  at  usual  hour;  adjourned  for  dinner 
for  one  hour.  Box  was  taken  by  Democratic  inspector  to  residence  of 
one  Polk ;  during  tbis  time  vote  was  counted  privately  and  admission 
was  refused  to  every  one ;  29  "  Buchanan's"  tickets  thrown  out  as  being 
too  narrow. 

Contestee's  witness. — "Betts,"p.  419;  "Leigh,"  p.  415;  ♦*  Wynn,"  p. 
409 ;  "  Borvoy,"  p.  407  :  Say  election  and  count  was  fair. 

Brooklyn  Precinct. 

^'  Crawford,"  p.  192 :  Was  inspector ;  adjourned  one  hour  for  dinner 


334  DIGEST    OF    ELECTION    CASES. 

and  box  taken  by  Democratic  inspector  to  bis  boarding-house ;  witness 
did  not  go  with  it. 

Contestee's  witness.— "■  Lafrine,"  p.  415 :  Says  that  the  count  was  made 
with  closed  doors. 

Jenningh  Store  Precinct. 

Contestee's  witness. — "Houston,"  p.  406:  Polls  opened  between  seven 
and  eight  o'clock,  and  adjourned  three  quarters  of  an  hour  for  dinner, 
Phelps,  Democratic  inspector,  taking  charge  of  box.  Vote  was  counted 
with  closed  doors. 

Leveretfs  Store. 

Cwitestee's  witness. — "  Blood  worth,"  p.  410 :  Polls  opened  as  "  near  six 
o'clock  as  we  could."  Count  was  made  with  closed  doors.  Witness 
says  that  Eepublicans  usually  carry  this  box  by  some  65  or  70  majority ; 
that  there  was  a  good  turn-out,  and  that  there  were  only  15  or  20  white 
voters  at  box. 

Dog  Moor  Flat  Precinct. 

Contestee's  witness. — "  Demnan,"  p.  412  :  Polls  opened  about  seven 
o'clock  and  closed  about  sundown.    It  was  a  Republican  box. 

Record,  p.  392  :  The  county  canvassers  fail  to  make  any  return  of  the 
vote  of  this  county  by  precincts. 

"  Hibernia  "  Precinct. 

"  Greene,"  p.  191 :  Supervisor.  Witness  remained  until  5^  o'clock ;  69 
votes  had  been  counted  up  to  that  time ;  all  Republicans.  Mr.  Ray, 
Democratic  inspector,  held  the  election. 

"  Downey,"  p.  195 :  Shows  that  box  was  thrown  out  and  not  counted 
by  county  commissioners,  and  that  Ray  took  out  all  books  and  box  to 
hold  election. 

Contestee's  witness. — "  McAfee,"  p.  418 :  Testifies  that  blank  forms  for 
making  returns  were  sent  out  in  all  the  boxes. 

Rosses  Mill  Precinct. 

"  King,"  p.  191 :  Inspector.  Polls  adjourned  one  hour  for  dinner,  and 
box  was  taken  by  Democratic  oflficers  to  Ross's  residence.  Witness  did 
not  go  with  it.    Contestee  introduced  not  any  witnesses  at  this  box. 

A  part  of  the  committee  find  that  the  evidence  does  not  satisfy  their 
minds  that  a  conspiracy  existed  for  the  purpose  of  defeating  contestant  j 
but  to  the  minds  of  the  majority  this  proposition  is  quite  certainly  estab- 
lished, and  as  proof  of  this  we  briefly  call  attention  to  a  few  facts  shown 
by  the  evidence.  By  the  census  of  1880  (see  Record,  p.  199)  it  is  shown 
that  the  six  counties  of  Marshall,  De  Soto,  Panola,  La  Fayett«,  Talla- 
hatchie, and  Tate  contained  a  population  in  the  aggregate  as  follows : 

Colored 79,204 

White 52,744 

Taking  the  rule  that  one  in  five  are  voters,  we  have — 

Colored  voters 15,840 

White  voters 10,544 

Colored  majority 5, 296 


BUCHANAN    VS.    MANNING.  335 

And  it  is  shown  beyond  a  doubt  that  five  of  these  counties  had  and 
have  large  Republican  majorities,  and  only  one  (La  Fayette)  which  has 
a  small  Democratic  majority;  yet  in  these  counties  we  find  that  the 
Eepublican  majority  is,  prima  facie,  5,2^)0. 

The  evidence  shows  very  conclusively  that  there  are  at  least  as  many 
white  Republicans  in  these  counties  as  there  are  black  Democrats. 
The  returns  from  these  counties  and  others  composing  the  district 
(Record,  page  392)  show  that  Harris,  the  Greenback  candidate,  received 
3,585  votes,  and  that  most  of  these  were  cast  by  white  voters,  and  no 
part  of  these  votes  were  cast  in  either  of  these  six  counties  except  iu 
the  county  of  Panola,  where  he  received  about  400  votes.  The  white 
votes  received  by  him  in  these  six  counties  are  as  follows  (Record,  page 
392): 

De  Soto  County 83 

La  Fayette  County • 301 

Marshall  County 313 

Tallahatchie  County 17 

Tate  County 299 

Panola  County 487 

Total 1,500 

Colored  majority  as  stated  in  these  six  counties  being 5, 296 

Deduct  colored  vote  in  Panola  ^ounty 400^ 

^  4,896 

Add  white  vote  for  Harris  in  these  six  counties 1,500 

6,396 

By  this  it  appears  that  contestee  was  in  the  minority  in  these  six 
counties,  6,396;  yet  in  the  face  of  this  the  returns  (see  Record,  page 
393)  give  the  contestee  a  majority  of  2,153  votes.  This  state  of  affairs, 
cannot  but  create  suspicion,  and  engender  a  belief  that  the  Mississippi 
plan  succeeded. 

And  your  committee  would  state  that  the  above  is  based  on  the  evi- 
dence of  contestee  (Record,  page  215)  and  the  witness  Wimberly  (page 
470  of  Record,  question  1  on  cross- exau) in ation). 

It  would  extend  this  report  to  an  unprecedented  length  to  give  in  de- 
tail all  the  evidence  tending  strongly  to  prove  a  conspiracy  to  do  just 
what  was  done,  to  wit,  to  count  in  the  contestee  at  all  hazards.  But 
we  briefly  state  that  the  evidence  shows  that  in  over  fifty  places  the 
ballot-boxes  were  taken  away,  and  out  of  the  view  of  the  supervisor, 
either  at  noon  or  after  the  polls  were  closed,  and  carried  to  private  resi- 
dences and  locked  in  rooms  and  left  unguarded,  and  the  supervisors  not 
even  allowed  to  remain  with  them.  All  this  against  the  earnest  protest 
of  the  supervisors.  All  of  these  things  were  in  direct  and  flagrant  vio- 
lation of  law ;  and  the  evidence  shows  that  in  several  instances  the  vote 
was  counted  in  secret,  and  not  in  public,  as  the  law  requires.  And  we 
quote  the  language  of  our  honorable  chairman  in  his  report :  "  The  elec- 
tion was  conducted  without  regard  to  fairness  or  common  decency.''" 
In  this  the  majority  sincerely  concur.  That  all  kinds  of  illegal  and 
fraudulent  practices  were  resorted  to  by  the  friends  of  the  contestee  in 
these  six  counties,  knowing  that  a  full  vote  and  fair  count  would,  as  he 
himself  stated  to  the  witness  Harris,  be  almost  solid  against  him;  and 
in  fact  the  votes  were  so  cast,  but  not  so  counted  or  returned. 

It  is  evident  contestee  and  his  friends  had  the  power  if  they  had  the 
votes  to  carry  the  election  honestly,  and  if  honestly  convinced  that  they 
had  a  majority  of  the  votes  they  certainly  would  never  have  resorted 


336  DIGEST    OF    ELECTION    CASES. 

to  the  shameful  frauds  they  did  to  count  contestant  out  in  these  coun- 
ties known  to  have  large  Eepublican  majorities.  Why  did  they,  as 
the  evidence  shows  they  did,  close  the  registration  of  voters  ten  days 
l)efore  the  election  in  these  counties  of  De  Soto,  Panola,  and  Marshall, 
each  with  very  large  Eepublican  majorities,  and  five  days  before  the 
■election  in  the  Eepublican  county  of  Tallahatchie ;  and  why,  in  violation 
of  law,  close  the  registration  of  voter^in  the  counties  of  La  Fayette  and 
Tate  from  a  week  to  ten  days  before  the  election  by  sending  the  books 
away  from  the  clerk's  oflSce  to  be  carried  around  througb  the  counties 
to  Democratic  meetings,  so  that  Eepublicans  could  not  register  when 
they  came  to  the  office  for  that  purpose,  and  then  were  refused  after- 
wards because,  as  they  were  informed,  the  time  for  so  doing  had  passed? 

Why  did  the  governor  and  State  board  select  men  in  these  counties  as 
commissioners  to  act  in  behalf  of  the  Eepublicans  who  could  neither  read 
nor  write  (and  the  evidence  shows  that  this  class  of  men  were  selected 
in  forty-two  precincts  in  these  counties),  and  refused  to  select  any  man 
designated  by  the  Eepublicans,  and  also  refused  to  appoint  a  Green - 
backer  for  the  false  and  groundless  reason  that  there  was  no  such  polit- 
ical organization,  when  the  evidence  shows  that  there  was  a  well-organ- 
ized Greenback  party  in  each  of  these  counties,  and  numbered  amongst 
its  adherents  as  intelligent  men  as  could  be  found  in  the  State  ?  But 
why  at  the  same  time  did  this  same  board  select  as  commissioners  for 
the  counties  named  to  act  for  and  oh  part  of  the  Democrats,  to  wit,  in 
the  counties  of  De  Soto,  Panola,  Marshall,  La  Fayette,  and  Tallahatchie, 
men  who  have  been  indicted  and  convicted  of  the  crimes  committed  at 
this  election,  and  as  stated  in  the  evidence  taken  in  this  contest  ?  And 
we  can  but  conclude  that  these  things  were  done  in  pursuance  of  a  con- 
spiracy to  unite  in  a  common  purpose  to  cheat  and  defraud  the  contestant 
•out  of  his  election. 

To  all  that  the  evidence  discloses  there  is  but  one  answer,  and  that 
is  that  there  was  a  conspiracy  to  do  these  things,  and  that  the  purpose 
was  accomplished  by  a  universal  disregard  of  all  laws,  and  a  high-handed 
and  reckless  debauching  of  the  ballot-boxes,  and  a  treacherous  and  in- 
human trampling  down  of  the  rights  of  the  citizen  who  dared  to  vote 
his  honest  convictions,  if  those  convictions  led  him  to  vote  any  other 
ticket  except  the  Democratic  ticket.  And  the  evidence  shows  that  these 
outrages  are  not  the  result  of  prejudice  to  color,  but  only  because  of  the 
disposition  on  the  part  of  the  Democrats  of  that  district  to  carry  their 
election  against  all  opposition,  and  by  any  means  that  will  accomplish 
that  object. 

SUMMING  UP. 

First.  The  appointment  of  illiterate  oflBcers  of  election  is  such  a  mani- 
fest disregard  of  duty  and  violation  of  statute  law  as  to  render  void  the 
whole  appointment  of  election  oflBcers.  One  of  the  essential  duties  of 
county  commissioners  and  precinct  inspectors  is  to  sign  and  certify  the 
returns,  and  their  duty  cannot  be  performed  by  a  person  who  cannot 
read  and  write.  Where  three  persons  are  named  in  a  statute  as  neces- 
sary to  perform  an  official  duty,  all  must  be  appointed  and  all  must  act, 
though  a  majority  may  control  (see  Ballard  vs.  Davis,  2  George's  Miss. 
Eeports ;  also  authorities  heretofore  cited).  Hence  the  appointment  of 
illiterate  inspectors  and  commissioners  of  election  would  vitiate  the 
whole  appointment  and  destroy  the  election. 

Second.  But  we  do  not  wish  to  rest  our  report  on  so  technical  a  ground, 
and  hence  we  hold  that  the  appointment  of  illiterate  inspectors  and 


BUCHANAN    VS.    MANNING.  337 

commissioners  takes  away  from  the  return  of  the  election  oflficers  that 
presumi)tion  of  truth  which  otherwise  it  would  have,  and  a  party  claim- 
ing a  seat  on  the  return  of  such  officers  must  show  the  utmost  good 
faith  in  the  election. 

Third.  In  the  case  before  us,  1st,  the  action  of  the  governor  and 
State  board,  their  refusal  to  allow  the  opposition  party  to  name  any  of 
the  election  commissioners ;  2d,  the  same  action  on  the  part  of  the 
county  commissioners  in  appointing  the  precinct  inspectors ;  3d,  the 
appointment  of  corrupt  and  illiterate  officers ;  4th,  the  systematic  ad- 
journments of  the  election  without  sufficient  cause;  5th,  the  premature 
closing  of  the  registration  books,  and  refusal  to  register  Republican 
voters,  the  erasing  of  names  of  Republican  voters  already  registered, 
and  the  forgery  of  poll-books  ;  Cth,  the  failure  to  openly  count  the  vote 
at  the  closing  of  the  polls ;  7th,  the  changing  of  polling  places ;  8th,  the 
abandonment  of  ballot-boxes  during  adjournment,  and  of  their  carrying 
off  to  private  houses  during  adjournment ;  the  interference  with  and 
exclusion  of  United  States  supervisors ;  9th,  the  fact  that  these  practices 
were  in  counties  having  large  Republican  majorities,  are  conclusive 
evidence  of  a  conspiracy  to  defraud. 

This  being  a  conspiracy  to  defraud,  there  being  proof  of  fraud  at  a 
number  of  precincts,  and  the  illiterate  inspectors  leaving  the  door  open 
to  unlimited  fraud,  and  there  being  no  proof  by  Contestee  of  good  faith 
in  the  election,  it  must  be  set  aside. 

Among  all  the  cases  passed  upon  or  now  under  consideration  by  your 
committee  we  do  not  find  such  a  condition  of  affairs  as  is  presented  in 
this  case. 

One  of  the  principal  arguments  urged  in  behalf  of  conUstees  in  other 
cases  from  the  South  is  that  the  Republican  party  in  that  section  is 
largely  composed  of  illiterate  colored  voters,  and  that  the  ascendency 
to  power  of  such  a  class  would  be  not  only  offensive  but  oppressive ; 
and  that  therefore  the  frauds  committed  were  either  justifiable  or  ex- 
cusable for  the  protection  of  the  intelligent  and  property -holding  classes 
of  society;  and  such  argument  has  been  used  with  great  force. 

In  this  district,  however,  while  it  appears  that  the  colored  voters  are 
almost  universally  Republicans,  there  is  no  insignificant  portion  of  the 
party  made  up  of  white  voters,  men  of  wealth  and  iutelligence.  And 
those  who  constitute  the  Greenback  party  of  the  district  (they  polling 
about  3,600  votes  at  this  election)  are  chiefly  white  voters,  lawyers, 
physicians,  and  owners  of  large  landed  estates,  many  of  whom,  as  the 
proof  shows,  were  formerly  leaders  and  held  controlling  positions  in 
the  Democratic  party  of  the  district.  Yet  it  is  shown  that  the  hostility 
towards  the  Greenbackers  upon  the  part  of  the  Democratic  party  is 
just  as  bitter  as  against  the  Republicans  of  the  district,  and  that  they 
are  pursued  with  the  same  vindictiveness ;  and  their  complaints  that 
they  are  practically  disfranchised  are  just  as  loud  as  are  the  complaints 
of  Republicans. 

In  reaching  a  decision  in  this  case  we  have  not  been  compelled  to  rely 
on  the  evidence  of  the  partisan  friends  of  contestee  or  contestant  alone, 
but  largely  uj)on  the  testimony  of  the  Greenbackers^  who  are  men  of  in- 
telligence and  high  standing,  as  appears  by  their  evidence. 

In  conclusion,  while  we  are  morally  certain  from  the  general  tenor  of 
the  evidence  before  us  that  the  contestant  was  grossly  defrauded  in  the 
election,  and  while  we  have  no  doubt  but  that  he  could  have  proved  a 
clear  title  to  a  seat  in  Congress,  we  are  compelled  to  say  that  he  has 
not  made  out  that  proof  by  i^roper  legal  evidence.  We  know  the  labor, 
H.  Mis.  35 22 


338  DIGEST    OF   ELECTION    CASES. 

expense,  and  experience  required  to  disclose  frauds  carefully  concealed, 
but  we  do  not  feel  justified  in  departing  from  tbe  rules  of  evidence  so 
far  as  to  seat  the  contestant.  We  are,  however,  fully  satisfied  that  there 
was  no  legal  election  in  the  second  district  of  Mississippi,  and  that  the 
contestee  should  not  longer  be  permitted  to  retain  a  seat  which  is  cov- 
ered over  with  fraud.  Therefore  we  recommend  the  adoption  of  the 
following  resolutions: 

Besolved,  That  George  M.  Buchanan  is  not  entitled  to  a  seat  in  the 
Forty-seventh  Congress. 

Besolved,  That  Van  H.  Manning  is  not  entitled  to  a  seat  in  the  Forty- 
seventh  Congress  from  the  second  Congressional  district  of  Mississippi. 

WM.  G.  THOMPSON. 


JOHN  R.  liYNCH  vs.  JAMES  K.   CHAIiMERS. 

Sixth  Congeessional  District  of  Mississippi. 

Contestant  charges  fraud  and  violation  of  law  on  the  part  of  the  commissioners  of 
election  ;  that  they  refused  to  count  votes  lawfully  cast  for  contestant  because 
no  list  of  voters  was  sent  with  the  returns  by  the  precinct  officers,  because  there 
were  more  ballots  in  the  box  than  there  were  names  on  the  poll-list,  because  the 
precinct  returns  were  not  certilied  to  by  the  inspectors  or  the  clerk,  and  because 
a  large  number  of  ballots  bore  on  their  face  "devices  or  marks." 

Held,  That  the  rejection  of  returns  because  no  list  of  voters  was  sent  with  them  wa» 
improper,  and  contestant  should  be  given  the  beneiit  of  such  rejected  votes. 

That  the  rejection  of  returns  because  of  excess  of  ballots  over  names  on  the  poll-list 
was  improper,  and  the  vote  proven  should  be  counted. 

That  the  omission  of  the  certificate  of  the  precinct  inspectors  and  clerk  to  a  precinct 
return  is  cured  by  a  certificate  of  the  commissioners  of  election  as  to  the  number 
of  votes  rejected  for  that  reason. 

That  the  printer's  dashes,  such  as  were  used  on  the  tickets  in  this  case,  and  objected 
to  as  being  "  devices  or  marks,"  are  known  among  printers  as  punctuation  marks ; 
that  they  were  not  used  or  placed  npon  the  tickets  for  the  purpose  of  distinguish- 
ing them  from  any  other  tickets,  nor  as  a  device  for  that  purpose,  and  not  being 
of  themselves  devices  they  are  not  inimical  to  the  statute  which  provides  "all 
ballots  shall  be  *  *  *  without  any  device  or  mark  by  which  one  ticket  may 
be  distinguished  from  another." 

The  House  adopted  the  majority  report. 


Apeil  6,  1882. — ^Mr.  Calkins,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

Tour  committee,  to  whom  was  referred  the  above-entitled  contested-election 
case,  having  had  the  same  under  consideration,  beg  leave  to  report : ^^^ 

That  the  contest  in  this  case  was  commenced  by  contestant,  and  the 
following  facts  were  set  out  by  him  in  his  notice  as  the  grounds  on 
which  he  relied  to  maintain  it: 

First.  He  alleges  as  a  fact  that  he  received  the  highest  number  of 


LYNCH   VS.    CHALMERS.  339 

legal  votes  cast  in  the  sixth  Congressional  district  in  Mississippi  for 
Kepresentative  in  the  Forty-seventh  Congress. 

Second.  That  the  true  result  and  return  was  suppressed  and  made  to 
appear  the  other  way  by  reason  of  frauds  and  violation  of  law,  more 
particularly  set  forth  as  follows: 

a.  In  Adams  County,  city  of  Natchez,  Jefferson  Hotel  and  Washing- 
ton precincts.  Republican  voters  were  purposely  and  fraudulently  hin- 
dered and  delayed  in  voting  until  the  time  arrived  for  the  closing  of 
the  polls,  leaving  several  hundred  voters  standing  around  the  i)olls 
anxiously  waiting  to  vote,  of  which  privilege  they  were  deprived  by  a 
systematic  course  of  delay  set  on  foot  and  carried  out  by  prominent 
Democrats  and  the  election  officers. 

6.  That  in  Washington,  Kingston,  Pine  Ridge,  and  Beverly  precincts 
the  ballot-boxes  were  tampered  with  and  stufled,  and  the  further  viola- 
tions of  the  law  in  refusing  to  allow  the  United  States  supervisors  to  be 
present  and  witness  the  counting  of  the  votes  after  the  election  closed ; 
and  at  Palestine  and  Dead  Man's  Bend  i)recincts,  in  said  county,  the 
election  officers  fraudulently  and  unlawfully  refused  to  count  the  votes 
polled,  whereby  214  votes  majority  in  those  precincts  were  lost  to  con- 
testant. 

c.  Jefferson  County. — At  Rod«ey  precinct,  where  the  contestant  re- 
ceived 145  majority,  the  officer  in  charge  of  the  returns,  on  his  way  to 
the  county-seat,  with  the  papers  declaring  the  result  of  the  election, 
was  intercepted,  the  returns  forcibly  taken  from  him  and  destroyed, 
whereby  the  result  was  lost  to  the  contestant. 

d.  Claiborne  County. — At  the  precinct  of  Grand  Gulf  the  United  States 
supervisor  of  elections  was  refused  the  right  to  be  present  to  witness 
the  count,  and  the  ballot-box  was  stulied. 

e.  Warren  County. — That  the  commissioners  of  election  threw  out 
2,029  lawful  votes  cast  for  the  contestant,  and  refused  to  count  them. 

/.  Issaquena  County. — That  the  commissioners  of  election  threw  out 
785  lawful  votes  cast  for  the  contestant  and  refused  to  count  them. 

g.  Washington  County. — At  the  voting  precincts  of  Stoneville  Eefuge 
and  Lake  Washington,  170  votes  for  the  contestant  were  thrown  out. 
At  Greenville,  liobb,  and  Stone  precincts  the  ballot  boxes  were  taken 
away  and  counted  in  the  absence  of  the  United  States  supervisor  of 
election,  and  without  his  consent  and  against  his  protest.  At  the 
Court-House  precinct,  as  well  as  at  the  said  precincts  of  Eobb  and  Stone, 
ballot-boxes  were  corruptly  stufled. 

h.  Bolivar  County. — At  the  precincts  of  Australia,  Holmes  Lake,  Boli- 
var Lauding,  and  Glencoe,  678  legal  votes  for  the  contestant  were  ex- 
cluded by  the  officers  of  election  without  cause. 

i.  Coahoma  County. — That  the  officers  of  election  excluded  and  refused 
to  count  any  of  the  votes  polled  in  any  of  the  various  precincts  of  that 
county,  except  Friar's  Point,  whereby  700  votes  were  lost  to  the  con- 
testant. 

To  this  notice  the  contestee,  answering,  denied  the  allegations  of 
fraud  in  Adams  County,  and  denied  specially  the  other  allegations  of 
contestant's  notice  relative  to  the  various  precincts  therein,  except  Pal- 
estine and  Dead  Man's  Bend.  In  those  two  precincts  the  contestee  al- 
leged that  the  ballots  were  rejected  strictly  in  accordance  with  the  laws 
of  Mississippi. 

2d.  As  to  Rodney  precinct,  the  contestee  admits  that  there  were  247 
votes  cast  for  the  contestant  and  92  for  the  contestee,  and  that  they 
were  destroyed,  but  that  they  ought  not  to  be  counted  unless  it  is  shown 


340  DIGEST    OF   ELECTION    CASES. 

they  were  in  accordance  with  section  137  of  the  Eevised  Code  of  Missis- 
sippi of  1880. 

3d.  As  to  Claiborne  County,  it  is  denied  that  the  boxes  were  stuffed, 
or  that  the  United  States  supervisor  was  refused  permission  to  be  pres- 
ent at  the  counting  of  the  ballots. 

4th.  As  to  the  votes  in  Warren  County,  the  contestee  alleges  in  an- 
swer specially,  that  628  of  the  2,029  ballots  were  not  counted  for  the 
following  reasons:  (a)  Tbat  at  Bovenia  precinct  174  ballots  were  too 
wide;  {b)  that  at  the  Fourth  ward  precinct,  city  of  Yicksburg,  214  bal- 
lots had  marks  upon  them' ;  (c)  that  at  Prior's  Church  precinct,  240 
ballots  had  marks  upon  them  ;  {d)  that  at  the  other  preciuts  in  said 
county  there  were  1,821' ballots  marked  in  violation  of  law,  and  were 
not  counted,  which  makes  a  total  of  2,049,  of  which  2,029  had  on  them 
the  name  of  contestant,  and  20  the  name  of  contestee. 

5th.  As  to  Issaquena. County  the  contestee  alleges  that  the  ofl&cersof 
election  rejected  the  returns  made  from  Skipworth,  Ben  Lemo'jd,  Ingo- 
mar,  and  Hayes'  Landing  precincts,  because  the  officers  of  election  did 
nof  comply  with  the  law,  and  that  the  ballots  and  tally-list  did  not  cor- 
respond by  from  40  to  60  votes,  and  that  at  Hayes'  Landing  precinct, 
in  addition  to  the  above  grounds,  the  whole  crew  of  a  steamboat  landed 
there  that  day  and  voted  without  being  registered. 

6th.  As  to  Washington  County,  a  general  denial  is  put  in,  and  in  ad- 
dition, contestee  alleges  that  the  Stoneville  box  was  rejected  because 
the  officers  did  not  comply  with  section  139  of  the  Code  of  Mississippi, 
and  that  the  box  had  been  taken  out  of  the  sight  and  control  of  the 
officers  by  one  Johnson,  a  p'artisan  of  contestant.  The  Lake  Washing- 
ton box  was  not  counted,  because  the  ballots  were  not  sent  up  to  the 
.commissioners  of  election,  but  the  statement  signed  by  the  clerks  and 
sent  up  showed  a  majority  of  116  for  contestee. 

7th.  As  to  Bolivar  County,  contestee  makes  a  certificate  signed  by 
the  commissioners  of  election  of  that  county  a  part  of  his  answer,  and 
affirms,  as  we  understand  it,  the  legality  of  their  action.  They  report 
that  they  threw.out  the  Australia  precinct  box — 30  Democratic  and  192 
Eepublican  votes — 

Because  the  returns  were  not  certified  to  by  the  inspectors  or  the  clerks.  We  have 
thrown  out  the  Holmes  Lake  precinct,  because  the  box  was  not  opened  nor  the  ballots 
counted  by  the  inspectors  and  numbered  by  the  clerks,  and  no  returns  or  tally-sheet 
made. 

We  have  thrown  out  the  Bolivar  precinct,  45  Democratic  and  311  Republican  votes, 
because  there  was  no  certified  return  from  the  inspectors  and  clerks.  The  tally-sheets 
sent  in  the  box  show  the  names  of  the  electors  of  the  Democratic  and  Republican 
parties  of  James  R.  Chalmers,  John  R.  Lynch,  G.  B.  Lancaster,  M.  Rolous,  .Tames 

Winters, Fleming,  and  James  White,  but  does  not  show  for  what  office  they 

were  voted  for.    The  tally  is  kept  on  four  diff"erent  sheets  of  paper.    The  total  can 
only  be  guessed  at,  but  not  ascertained  correctly. 

We  have  rejected  the  Glencoe  precinct  vote,  27  Democratic  and  233  Republican 
votes,  because  the  vote  was  counted  out  in  part  by  iall  the  inspectors  and  clerks  and 
then  discontinued  until  next  day,  when  the  count  was  finished  by  one  inspector  and 
one  clerk,  and  a  very  imperfect  tally-sheet  and  return  sent  in  by  these  two,  not  cer- 
tified to. 

JOHN  H.  JARNAGIN, 
,    RILEY  ROLLINS, 
W.  A.  YERGER, 
%  Commisaionera  of  Election. 

8th.  As  to  Coahoma  County,  the  contestee  denies  the  allegations  of 
contestant,  and  affirms  that  the  acts  of  the  election  officers  were 
strictly  in  accordance  with  the  laws  of  Mississippi.  Appended  to  con- 
testee's  answer  the  following  notice  is  addressed  to  the  contestant : 


LYNCH    VS.    CHALMERS.  341 

Notice  to  Hon.  J,  B.  Lynch. 

And  HOW,  having  answered  all  of  your  specifications,  you  will  take  notice  that  I 
will  insist  and  endeavor  to  prove  and  maintain: 

1.  That  you  did  not  receive  a  single  legal  vote  in  the  sixth  Congressional  district  of 
Mississippi  for  member  to  the  Forty-seventh  Congress  of  the  United  States;  that  all 
your  tickets  were  marked  so  that  they  could  be,  and  were,  easily  distinguished  by 
persons  who  could  not  read,  from  the  Democratic  ticket,  and  also  ffom  the  regular 
Republican  ticket,  printed. at  Jackson,  Miss.,  under  the  supervision  of  the  executive 
committee  of  the  Republican  party,  and  that  your  tickets  were  illegal  because  not 
such  as  is  prescribed  by  section  137  of  the  Revised  Statutes  of  Mississippi,  1880. 

2.  That  these  uiai'ked  tickets  were  examined  and  approved  by  you  before  they  were 
circulated,  and  that  you  paid  four  dollars  per  thousand  for  these  marked  tickets, 
■when  you  could  have  procured  from  the  Republican  Executive  Committee  legal  tickets 
for  your  district  for  one  dollar  per  thousand. 

3.  That  you  made  false  representation  to  the  secretary  of  state  of  Mississippi  about 
the  printing  of  your  tickets,  when  attempting  to  prevent  him  from  issuing  to  me  a 
certificate  of  election. 

4.  Th.at  your  friends  and  partisans,  in  violation  of  law,  and  contrary  to  the  very 
essence  of  voting  by  ballot,  stood  at  the  polls  and  kept  a  list  of  the  voters  and  Ito^ 
each  voted  as  the  ballots  were  handed  in. 

5.  That  at  Stoneville  and  Refuge  precinct,  in  Washington  County,  your  friends 
and  partisans,  some  of  whom  were  United  Stales  supervisors  of  election,  browbeat, 
bullied,  and  intimidated  a  number  of  colored  voters  who  desired  to  vote  for  me,  and 
prevented  them  from  so  voting.  ♦ 

6.  I  will  insist  and  maintain  that  you  were  unpopular  with  your  own  party  for  many 
reasons,  and  especially  becarise  you  opposed  the  nomination  of  General  Grant  for 
President,  and  that  a  large  number  of  leading  colored  Republicans  supported  me  on 
the  stump  and  at  the  polls ;  that  I  was  elected  and  you  were  not. 

JAS.  R.  CHALMERS. 

LEGAL  PROCEEDINGS. 

It  appears  from  the  record  that  on  the  16th  day  of  November,  1880, 
th^  contestant  went  before  the  Hon.  Ji  A.  P.  Campbell,  one  of  the 
supreme  judges  of  the  court  of  Mississippi,  and  acting  as  chancellor  of 
the  chancery  court  of  Hinds  County,  Mississippi,  and  tendered  his 
sworn  bill  of  complaint,  in  and  by  which  he  sought  to  enjoin  the  Hon. 
Henry  C.  Mej'ers,  secretary  of  state,  from  declaring  the  contestee 
duly  elected  a  Eepresentative  in  the  Forty-seventh  Congress  from  the 
6th  Congressional  district  of  Mississippi.  Among  other  things  in  his 
bill  of  complaint  the  contestant  alleges  that  the  returns  filed  in  the 
secretary  of  state's  ofiice  from  the  several  counties  showed  that  he  re- 
ceived the  votes  following: 

Adams  County 1, 194 

Bolivar  County 1,715 

Clairborne  Couuty 288 

Coahoma  County 1, 112 

Issaquena  County 1, 118 

Jefferson  County 386 

Quitman  County 83- 

Sharkey  Couuty 175 

Tunica  County .^06 

Warren  Couuty .^ 2, 086 

Washington  County 1,298 

Wilkinson  County 814 

Total  number  of  votes , 10,775' 

And  that  the  contestee  received  the  following  votes : 

Adams  County 1,419 

Bolivar  County 403 

Clairborne  County 1,061 

Coahoma  County 553 

Issaquena  County 173 

Jefferson  County 1, 042 


342  DIGEST  OF  ELECTION  CASES. 

Qnitman  County 153 

Sharkey  County 484 

Tuuica'County 239 

"Warren  County - !•  034 

Washington  County 1,963 

Wilkinson  County 1,691 

Total  number  of  votes 10, 216 

He  also  alleges  that  there  was  deducted  from  the  votes  thus  received 
for  him  iu  the  counties  of — 

Adams 316 

Bolivar 736 

Coahoma 760 

Issaquena 7^*5 

Jeiferson 250 

Warren 2,029 

Washington 526 

'     Total  votes  rejected 5, 402 

And  from  the  vote  of  said  Chalmers  in  the  counties  of — 

Adams 32 

Bolivar 102 

Coahoma 328 

Issaquena 114 

Jeft'erson 92 

Warren 20 

Washington 356 

Total  votes  rejected 1.044 

And  he  claimed  that  the  deductions  made  from  his  vote  were  un- 
authorized and  unlawful,  and  he  asked  the  intervention  of  the  court  to 
prevent  the  issuing  of  a  certificate  of  election  to  the  coutestee. 

Judge  Campbell  made  the  following  indorsement  on  the  bill  of  com- 
plaint : 

I  decline  to  grant  the  injunction  prayed  for  in  the  annexed  bill,  because  the  House 
of  Representatives  of  the  Congress  of  the  United  States  is  the  exclusive  judge  "  of  the 
elections,  returns,  and  qualifications  of  its  own  members"  (made  so  by  the  Constitu- 
tion of  the  United  States),  and  a  decision  of  the  question  as  to  the  election  of  a  mem- 
ber of  Congress  by  any  other  tribunal  w«iuld  not  be  authori  tati  ve  or  final.  Besides  this, 
the  chancery  court  is  not  authorized  to  decide  contested  elections,  and  whatever 
its  right,  if  any,  to  enjoiu  in  aid  of  a  contest  inaugurated  in  a  court  of  the  State, 
which  such  court  could  lawfully  determine,  it  appears  to  be  clear  that  interference  by 
injunctiou  to  prevent  an  executive  ofiicer  from  pei  forming  a  duty  prescribed  by  law, 
in  reference  to  an  election  as  to  which  no  court  can  decide,  so  as  to  conclude  anybody 
or  thing,  would  be  without  the  semblance  of  right. 

J.  A.  P.  CAMPBELL, 
One  of  the  Judges  of  the  Supreme  Court  of  Mississippi. 

Jackson,  Miss.,  November  17,  1880. 

By  the  revised  code,  1880,  of  Mississippi,  the  following  provision  is 
made  relative  to  the  writ  of  mandamus : 

-  Sec.  2542.  On  the  petition  of  the  State  by  its  attorney-general,  or  a  district  at- 
torney, in  any  matter  alfecting  the  public  interest,  or  on  petition  of  any  private  per- 
son who  is  interested,  the  writ  of  mandamus  shall  be  issued  by  a  circuit  court  com- 
manding any  inferior  tribunal,  corporation,  board,  officer,  or  person  to  do  or  not  to  do 
an  act  the  performance  or  omission  of  which  the  law  especially  enjoins  as  a  duty  re- 
sulting from  an  office,  trust,  or  station,  and  where  there  is  not  a  plain,  adtquate,  and 
speedy  remedy  in  the  ordinary  course  of  law. 

Under  this  section  the  district  attorney  of  Tunica  County  filed  his 
petition  in  the  circuit  court  of  that  county  against  the  election  commis- 
sioners to  compel  them  to  reassemble  and  reject  506  ballots  which  had 
been  counted  for  the  contestant,  Mr.  Lynch,  and  which  were  claimed  to 
be  illegal  because  they  contained  marks  and  devices  in  violation  of  the 
election  laws.    The  petition  was  denied,  and  an  appeal  was  taken  to 


LYNCH    VS.    CHALMERS.  343 

the  supreme  court  of  the  State.    The  case  is  reported  iu  58  Mississippi^ 
502,  and  is  as  follows : 

InA  D.  Oglksby,  District  Attorney, 

vs. 

J.  L  SiGiMAN  et  al.,  Commissioners  of  Election. 

Appeal  from  circuit  court,  Tuuica  County,  Hon.  Samuel  Powell,  judge. 

On  the  9tli  of  December,  1880,  Ira  D.  Oglesby,  district  attorney  for  the  third  judi- 
cial district,  filed  a  petition  in  the  circuit  court  of  Tunica  County  for  a.  mandamus  to 
compel  the  commissioners  of  election  in  that  county  to  reassemble  and  recanvass  the 
returns  made  to  them  by  the  inspectors  of  election  of  the  votes  cast  at  the  election  on 
the  2d  of  November,  1880,  for  a  member  of  Congress  from  the  sixth  Congressional  dis- 
trict, and  to  make  a  statement  of  the  result  of  such  recanvass  to  the  secretary  of  state 
within  a  time  to  be  prescribed  by  the  conrt.  The  petition  alleged  that  the  commis- 
sioners of  election  had  counted  506  ballots  which  were  illegal  because  bearing  certain 
marks  and  devices  prohibited  by  the  statute  on  elections,  and  prayed  that  in  the 
recanvass  they  be  required  to  reject  such  illegal  ballots.  The  petition  was  filed  under 
flection  2542  of  the  Code  of  1880,  and  stated  as  jurisdictional  facts  that  the  public  is 
deeply  interested  in  getting  a  construction  of  the  election  law  of  this  State  as  to  the 
duties  of  the  inspectors  and  commissioners,  concerning  which  conflicting  views  are 
entertained;  that  these  officers  are  liable  to  criminal  prosecutions,  under  the  laws  of 
the  State  and  of  the  United  States,  for  any  omission  or  violation  of  their  duties;  and 
that  the  commissioners  of  Warren  County  have  already  been  indicted  and  arrested  for 
their  acts,  under  the  election  laws.  A  Jac  simile  of  the  ballots  alleged  to  have  beea 
illegally  counted  was  attached  to  the  petitjou,  and  is  as  follows : 

KEPUBLICAN  l^ATIONAL  TICKET. 


For  Fresiden't, 
JAMES  A.  GARFIELD. 


For  Vice-President, 
CHESTER  A.  ARTHUR. 


For  Electors  for  President  and  Vice- 
President, 

Hon.  William  R.  Spears. 

Hon.  R.  W.  Flournoy 

Dr.  J.  M.  Bynum, 

Hon.  .T.  T.  Stettle 

Capt.  M.  K.  Mister,  Jr., 

Dr.  R.  H.  Montgomery, 

Judge  R.  H.  Cuny, 

Hon.  Charles  W.  Clarke 


For  Memier  of  the  House  of  Bepresent- 

aiives  from  the  6th  Congressional 

District. 

JOHN  R.  LYNCH 


344  DIGEST    OF    ELECTION    CASES. 

The  writ  of  mandamus  was  issued,  aud  the  commissioners  of  election  appeared 
and  demurred  to  the  petition  on  the  following  grounds  : 

1st.  That  they  are  merely  ministerial  officers,  aud  have  no  power  to  reject  ballot» 
that  hfive  been  counted  by  the  inspectors. 

2d.  That  the  marks  on  the  ballots  for  which  it  is  claimed  they  should  be  rejected 
are  mere  printer's  dashes,  and  are  not  such  distinguishing  marks  as  were  contemplated 
by  the  statute. 

The  court  sustained  the  demurrer  and  dismissed  the  petition,  and  the  petitioners  ap- 
pealed to  this  court.  The  provisions  of  the  election  law,  code  1880,  bearing  directly 
upon  the  questions  involved  in  this  case,  are  these  : 

Sec.  137.  A.11  ballots  shall  be  written  or  printed  in  black  ink,  with  a  space  not  les* 
than  one-iifth  of  an  inch  between  each  name,  on  plain  white  printing  newspaper,  not 
more  than  two  and  one-half,  nor  less  than  two  and  one-fourth,  inches  wide,  without 
any  device  or  mark  by  which  one  ticket  may  be  known  or  distinguished  from  another,, 
except  the  words  at  the  head  of  the  ticket;  but  this  shall  not  prohibit  the  erasure,, 
correction,  or  insertion  of  any  name  by  pencil  mark  or  ink  upon  the  face  of  the  bal- 
lot; and  a  ticket  different  from  that  herein  prescribed  shall  not  be  received  or 
counted. 

Sec.  138.  When  the  results  shall  have  been  ascertained  by  the  inspectors,  they,  or 
one  of  them,  or  some  fit  person  designated  by  them,  shall  by  twelve  o'clock  noon 
of  the  second  day  after  the  election,  deliver  to  the  commissioners  of  election,  at  the 
court-house  of  the  county,  a  statement  of  the  whole  number  of  votes  given  for  eacb 
person  and  for  what  office,  and  the  said  commissioners  of  election  shall  canvass  th© 
returns  so  made  to  them,  and  shall  ascertain  and  disclose  the  results,  and  shall,  within 
ten  days  after  the  day  of  said  election,  deliver  a  certificate  of  his  election  to  the  per- 
son having  the  greatest  number  of  votes  for  any  ofiice,  «fec. 

Sec.  139.  The  statement  of  the  result  of  the  election  at  their  precincts  shall  be  cer- 
tified and  signed  by  the  inspectors  and  clerks,  and  the  poll-book,  tally-list,  list  of 
voters,  ballot-boxes,  and  ballots  shall  be  delivered  as  above  required  to  the  commis- 
sioners of  election. 

Sec.  140.  The  commissioners  of  election  shall,  within  ten  days  after  the  election, 
transmit  to  the  secretary  of  state,  to  be  filed  in  his  office,  a  statement  of  the  whole 
number  of  votes  gi  ven  in  their  county  for  each  candidate  voted  for,  for  any  office  at 
such  election,  &c. 

The  case  was  submitted  by  counsel  without  brief  or  oral  argument. 

Campbell,  J.,  delivered  the  opinion  of  the  court : 

This  case  presents  for  adjudication  three  questions,  namely: 

1.  Whether  the  commissioners  of  election  have  the  right  to  reject  illegal  ballot* 
cast  and  counted  by  the  inspectors  of  election  and  returned  to  them  with  the  state- 
ment of  the  result  at  the  precincts. 

2.  Whether  the  ballots  which  the  commissioners  of  election  for  Tunica  County  re- 
fused to  reject  should  have  been  rejected  by  them  as  being  illegal,  for  having  on 
them  a  device  or  mark  by  which  one  may  be  known  or  distinguished  from  another. 

3.  Whether  the  action  of  the  commissioners  was  final,  or  whether  they  may  be  re- 
quired b^  mandamus  to  meet  and  act  in  the  matter  again,  as  the  court  may  order. 

We  think  it  clear  that  the  commissioners  of  election  have  the  right,  which  they 
should  exercise,  to  reject  ballots  returned  to  them  by  the  inspectors  of  the  election  a» 
having  been  cast  at  any  of  the  precincts  of  their  county  which  show  themselves  on 
inspection  to  be  illegal.  The  law  devolves  on  the  commissioners  of  election  the  duty 
to  prepare  for  the  election,  by  revising  the  register  of  electors,  aud  the  poll-books  of 
the  several  precincts,  so  that  they  may  show  who  are  qualified  electors,  and  by  appoint- 
ing inspectors  and  an  officer  to  keep  the  peace  at  each  voting  place  aud  by  distribut- 
ing ballot-boxes  and  poll-books.  The  inspectors  are  to  judge  of  the  qualification  of 
electors  so  as  to  receive  or  reject  ballots  ofi"ered  by  them,  and  when  the  polls  are  closed 
the  ballots  are  to  be  counted,  and  a  statement  of  the  whole  number  of  votes  given  for 
each  person  and  for  what  office  is  to  be  made,  and  this  statement,  certified  aud  signed 
by  inspectors  and  clerks,  and  the  poll-book,  tally  list,  list  of  voters,  ballot-boxes,  and 
ballots  are  to  be  promptly  delivered  to  the  commissioners  of  election,  at  the  court-house 
of  the  county,  to  the  end  that  they  may  canvass  the  returns  so  made  to  them,  and  see 
that  the  result  of  the  election  at  each  precinct,  as  certified  to  them  by  the  inspectors, 
and  clerks,  is  correct,  according  to  the  returns.  They  are  to  canvass  the  returns,  that 
is,  they  are  to  scrutinize  the  acts  of  those  engagefl  in  holding  the  election  at  the  ditter- 
ent  places  of  voting,  as  shown  by  the  returns  made  to  them  in  pursuance  of  law,  and 
determine  from  such  returns  who  received  the  greatest  number  of  legal  votes,  and 
who  is  entitled  to  receive  their  certificate  of  election  in  cases  in  which  they  give  such 
certificate,  and  what  return  they  shall  make  to  the  secretary  of  state. 

It  is  true  that  commissioners  of  election  are  not  judicial  officers,  in  the  sense  of  try- 
ing causes,  hearing  evidence,  and  pronotmcing  final  judgment  between  parties  seeking 
office,  but  they  are  charged  with  the  duty  of  canvassing  returns,  which  includes  the 
list  of  voters  and  list  made  in  counting,  and  the  ballots,  and  they  must  examine  such 


LYNCH   VS.    CHALMERS.  345 

retnrns  and  declare  the  legal  result  aud  certify  it.  If  they  find  an  error  in  computa- 
tion they  must  correct  it.  If  they  ascertain  from  the  lists  of  voters  that  persons  not 
registered,  aud  therefore  not  legal  voters,  have  cast  ballots,  they  caunot  correct  that^ 
because  of  inability  to  ascertain  which  ballots  are  legal  and  which  not ;  but  if  they 
find  in  the  ballot-boxes  ballots  declared  by  law  to  be  illegal,  and  such  as  shall  not  be 
counted,  it  is  their  plain  duty  to  rejact  them  ;  and  if  in  canvassing  the  returns  they 
ascertain  that  the  inspectora,  in  disregard  of  law,  have  counted  ballots  it  says  shall 
not  be  counted,  that  error  should  be  corrected  by  the  canvassers  as  certainly  as  an 
error  of  arithmetic  should  be.  The  law  makes  the  inspectors  judges  of -the  qualifica- 
tions of  electors,  from  necessity,  because  they  are  to  receive  the  ballots,  and,  when 
received  and  deposited  in  the  box,  it  is  not  supposed  by  the  law  to  be  possible  to 
identify  them,  but  the  ballots  show  for  themselves  whether  or  not  they  conform  to- 
la w,  and  there  is  neither  difficulty  nor  uncertainty  in  rejecting  ballots  as  being  illegal^ 
because  of  what  is  shown  by  them  upon  inspection.  We  think  the  effect  of  section 
137  of  the  code  of  1880  is  to  condemn  as  illegal,  and  not  be  received  or  counted,  every 
ballot  which  has  on  its  back  or  face  auy  device  or  mark  other  than  names  of  persons,, 
by  which  one  ballot  may  be  distinguished  from  another. 

This  statute  does  not  condemn  devices  or  marks  on  the  outside  of  a  ballot  merely,, 
but  clearly  euibraces  the  face  of  the  ballot  as  wejl.  That  is  apparent  from  the  excep- 
tion contained  in  it,  aud  a  device  or  mark  on  the  face  of  the  ballot  is  as  much 
within  what  we  suppose  to  have  been  the  object  of  this  provision  as  one  on  the  out- 
side or  back  of  it.  It  is  apparent  from  the  provision  that  its  object  is  not  only  to  pre- 
serve secrecy  as  to  what  ballot  an  elector  casts,  which  is  the  leading  idea  of  statutes- 
in  some  other  States,  which  prohibit  any  device  or  mark  on  a  ballot  folded  which  be- 
trays the  secret  of  the  voter ;  its  object  is  to^secure  absolute  uniformity  as  to  the  ap- 
pearance of  ballots,  in  order  that  intelligence  may  guide  the  electors  in  their  selec- 
tion, and  not  a  mere  device  or  mark  by  which  ignorance  may  be  captivated.  The 
legislature  was  trying  to  prevent  multitudes  from  "being  voted,"  and  being  guided 
by  a  mere  device  or  mark  by  which  they  should  distinguish  the  ballots  they  were 
to  use  in  the  process  without  a  knowledge  of  the  names  of  persons  for  whom  their 
ballots  were  being  cast.  Elections  are  a  contrivance  of  government  which  prescribes 
who  are  electors  aud  how  they  may  express  their  will,  and  it  is  a  legitimate  exercise 
of  power  to  prescribe  the  description  of  ballots  which  shall  be  used.  Section  137  of 
the  code  of  1880  does  this,  and  requires  all  ballots  to  be  written  or  printed  with  black 
ink,  with  a  minimum  space  between  names,  on  plain  white  news  printing  paper  of  a. 
certain  width,  and  without  any  device  or  mark  by  which'  one  ticket  may  be  known 
or  distinguished  from  another,  &c. ;  and  it  declares  that  a  ticket  different  from  that^ 
prescribed  shall  not  be  received  or  counted.  Considerations  of  policy  dictated  the- 
description  of  baUots  prescribed,  and  it  was  di  emed  of  such  importance  to  secure  an 
observance  of  the  requirement  that  it  is  declared  that  ballots  not  conforming  to  the 
description  prescribed  shall  not  be  received  or  counted. 

It  would  have  been  competent  to  impose  a  penalty  on  the  circulation  or  use  of  such 
ballots,  but  the  means  by  which  their  use  is  sought  to  be  prevented  is  the  rejection  of 
the  ballot  when  offered  or  from  the  count.  It  is  not  penal  for  an  elector  to  use  a  bal- 
lot differing  from  the  legal  pattern,  but  it  shall  not  be  counted,  and  thus  he  fails  to- 
express  his  will  through  such  an  instrumentality.  If  the  device  or  mark  is  external,, 
and  observed  by  the  inspectors,  they  should  not  receive  the  ballot.  If  it  is  received, 
and  on  being  opened  is  discovered  to  be  of  the  kind  condemned  as  illegal,  it  is  not  to 
be  counted  ;  but  if  the  inspectors  count  such  ballots  in  disregard  of  law  and  their  duty 
the  commissioners  of  election,  assembled  at  the  court-house,  with  time  and  opportu- 
nity afforded  to  scrutinize  and  conect,  as  far  as  may  be  done  by  the  data  furnished  by 
the  face  of  the  returns,  without  a  resort  to  evidence  aliuHde,  should  reject,  as  the  in- 
spectors should  have  done,  ballots  which  the  law  says  shall  not  be  counted.  Theoulj'- 
safe  guide  as  to  what  ballots  are  illegal  because  of  devices  or  marks  is  the  statute.  It 
excludes  any  mark  or  device  by  which  one  ticket  may  be  known  or  distinguished  from 
another.  A  distinction  between  ballots  by  means  of  devices  or  marks  instead  of  by 
means  of  the  names  on  them  is  what  the  statute  aims  to  prevent,  aud  we  are  not  at 
liberty  to  confine  the  broad  language  of  the  statute  to  auy  particular  description  or 
devices  or  marks,  for  ingenuity  would  eva4e  any  such  limit.  The  law  should  be  en- 
forced as' written. 

There  is  no  room  for  distinction  between  what  is  directory  and  what  is  mandatory, 
what  is  essential  and  what  is  not.  The  requirement  that  ballots  shall  be  written  or 
printed  with  black  ink,  with  a  space  not  less  than  one-fifth  of  an  inch  between 
names,  seems  to  have  been  designed  to  guard  against  confusion  and  mistake  as  to 
names  of  the  persons  voted  for  fur  the  different  otfices,  while  the  requirement  of  plain 
white  news  printing  paper  of  a  designated  width  within  narrow  limits,  aud  the  ex- 
clusion of  any  device  or  mark  by  which  one  ticket  may  be  known  or  distinguished 
from  another,  must  have  been  intended  to  secure  uniformity  in  the  appearance  of 
ballots,  so  that  ignorance  and  blind  party  devotion  might  not  be  led  to  the  adoption  of 
ballots  by  the  guidance  of  some  mark  and  devices,  as  to  which  they  were  instructed 


346  DIGEST    OF    ELECTION    CASES. 

by  their  leaders,  and  which,  instead  of  intelligent  coraprehensiou  of  whom  or  what 
they  are  casting  their  ballots  for,  should  determine  their  selection  of  ballots  to  be 
oast.  It  was  well  known  that  ballots  are  prepared  beforehand  under  the  direction  of 
political  managers,  and  are  distributed  for  use  among  electors;  and  it  was  furtber 
known  that  captivating  marks  and  devices  on  ballots,  appealing  to  ignorance  and  bliud 
party  zeal,  were  a  favorite  resort  as  an  electioneering  device  deemed  legitimate  and 
freely  practiced  with  much  effect;  and  the  purpose  of  section  137  was  to  stop  this  per- 
nicious practice,  and  to  make  the  prohibition  effective  by  prohibiting  any  mark  or 
device  by  which  one  ticket  can  be  distinguished  from  another,  and  by  rejecting  any 
ballot  in  violation  of  its  requirements.  It  was  assumed  that  ballots  would  still  be 
prepared  beforehand  by  party  managers  or  persons  interested  in  having  them  h'gal, 
And  that,  as  all  would  be  alike,  the  advantage  to  one  party  over  another  should  not 
consist  in  tickets,  but  that  ballots  must  be  selected  not  by  devices  and  marks,  but  be- 
cause of  the  names  to  be  voted  for. 

We  do  not  think  that  the  commissioners  of  election  can  be  required  to  meet  and  re- 
canvass  the  returns  of  the  election.  Having  made  their  canvass  and  declared  the 
result,  and  transmitted  a  statement  of  it  to  the  secretary  of  state,  their  connection 
with  the  returns  ended.  Any  error  committed  by  them  is  not  to  be  coiTected  by  re- 
•quiring  them  to  reasseml)le  and  correct  it.  The  legality  of  their  action  may  be  the 
subject  of  judicial  investigation  in  cases  in  which  provision  is  made  for  contesting  the 
election  by  an  appeal  to  the  courts  of  the  State,  but  only  in  those  cases. 

The  House  of  Representatives  of  the  Congress  of  the  United  States  is  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  members,  and  the  courts  of  the 
State  have  nothing  to  do  with  this  matter. 

This  case  might  properly  have  been  disposed  of  without  considering  any  of  the 
<[ue8tions  made  by  the  record  except  that  last  mentioned,  but  the  attorney-general 
informs  us  from  the  bar  that  doubts  exist  as  to  the  proper  interpretation  of  the  elec- 
tion law  of  1S80,  and  that  criminal  prosecutions  have  been  instituted  against  the  com- 
missioners of  election  of  some  of  the  counties  for  supposed  violations  of  the  law  in 
reference  to  their  duties,  and  we  have  complied  with  his  request  in  declaring  our 
view  of  the  several  qne«tions  presented  by  the  record. 

Judgment  affirmed.     To  be  reported. 

Chalmers,  C.  J.,  took  no  part  in  the  decision  of  this  case. 

I.  D.  Oglesby,  district  attorney,  vs.  J.  J.  Signian  et  al. 

I  concur  entirely  in  the  opinion  of  the  court  as  drawn  up  bv  Jndge  Campbell.  The 
duty  to  examine  and  reject  illegal  ballots  rests  on  every  officer  or  court  required  or 
authorized  by  law  to  count  them.  The  statute  prohibits  the  use  of  any  mark  or  de- 
vice on  a  ballot  by  which  one  "  ticket  may  be  known  or  distinguished  from  another." 
That  the  mark  or  device  adopted  is  a  mere  printer's  mark,  commonly  used  for  orna- 
mentation, makes  no  differenct^.  The  statute  prohibits  any  distinguishing  mark 
■whatever,  and  no  court  has  a  right  to  do  away  with  the  effect  of  the  statute  by  hold- 
ing that  marks  which  ar<»  mere  printer's  ornaments  may  be  used.  It  is  wholly  unim- 
portant whether  the  marking  on  the  ticket  was  the  result  of  ignorance  or  a  design  to 
«vade  the  statute.  The  inspectors  and  commissioners  have  no  power  to  inquire  into 
motives  ;  nor  has  the  statute  made  motives  important.  It  condemns  as  illegal  every 
ballot  or  ticket  which  is  so  marked  "  that  it  may  be  known  or  distinguished  from  aa- 
■other."  The  ticket  used  in  this  case  and  made  an  exhibit  to  the  petition  is  thus 
marked,  and  should  have  been  rejected.  We  have  nothing  to  do  with  the  policy  or 
impolicy  of  the  statute.  The  language  is  plain  and  does  not  admit  of  construction  ; 
and  it  is  the  duty  of  the  courts  and  other  officers  to  obey  and  enforce  it  in  the  sense 
the  words  clearly  indicate. 

GEORGE. 

We  have  set  out  the  decision  of  the  supreme  court  in  full,  and,  before 
<iiscus8ing  it,  we  might  as  well  say  here,  that  so  far  as  the  views  of  the 
minority  or  the  decisions  of  the  Committee  on  Elections  in  former  Con- 
gresses on  this  point  is  concerned  (which  have  been  referred  to  by  the 
<5ontesteo),  we  fully  concur  in  the  views  there  expressed,  and  adhere  to 
them,  with  the  exception  of  that  part  of  the  report  in  Yeates  vs.  Martin, 
in  the  Forty-sixth  Congress,  referring  to  marked  ballots.  We  dissent 
from  the  view  expressed  by  the  majority  of  the  committee  in  that  case, 
as  did  also  the  minority  of  the  Committee  on  Elections  at  the  time  it 
"was  rendered. 

It  is  seriously  contended  by  the  contestee  that  the  decision  of  the  su- 
preme court  of  Mississippi  construing  the  sections  of  the  election  laws 
of  that  State  ought  to  be  followed  by  Congress,  and  that  it  is  against 
the  settled  doctrine  of  both  Congress  and  the  Federal  judiciary  to  dis- 


LYNCH    VS.    CHALMERS.  347 

regard  the  decisions  of  State  tribunals  in  construing  their  own  local 
laws.  This  is  too  broadly  asserted,  and  cannot  be  maintained.  It  is 
true  that  whei'e  a  decision  or  a  line  of  decisions  has  been  made  by  the 
judiciary  of  the  States,  and  those  decisions  have  become  a  "  rule  of  prop- 
erty," the  Federal  judiciary  will  follow  them.  Not  to  do  so  would  con- 
tinually place  titles  to  property  in  jeopardy,  and  disturb  all  business 
transactions.  The  rule  as  to  all  other  questions  is  well  stated  in  Town- 
ship of  Pine  Grove  vs.  Talcott  (19  Wall.,  66G-'C7),  as  follows  :' 

It  is  insisted  that  the  invalidity  of  the  statute  has  been  determined  by  two  judg- 
ments of  the  supreme  court  of  Michigan,  and  that  we  are  bound  to  follow  these  adju- 
dications. With  all  respect  for  the  eminent  tribunal  by  which  the  judgments  were 
pronounced,  we  must  be  permitted  to  say  that  they  are  not  satisfactory  to  our  minds. 
*  *  *  The  question  before  us  belongs  to  the  domain  of  general  jurisprudence.  In 
this  class  of  cases  this  court  is  not  bound  by  the  judgment  of  the  courts  of  States 
where  the  cases  arise  ;  it  must  hear  and  determine  for  itself. 

There  is  still  another  reason  why  Congress  should  not  be  bound  by 
the  decisions  of  State  tribunals  with  regard  to  election  laws,  unless  such 
decisions  are  founded  upon  sound  principles,  and  comport  with  reason 
and  justice,  which  does  not  apply  to  the  Federal  judiciary,  and  it  is  this : 
Every  State  election  law  is  by  the  Constitution  made  a  Federal  law 
where  Congress  has  failed  to  enact  laws  on  that  subject,  and  is  adopted 
by  Congress  for  the  purpose  of  the  election  of  its  own  members.  To  say 
that  Congress  shall  be  absolutely  bound  by  State  adjudications  on  the 
subject  of  the  election  of  its  own  members  is  subversive  of  the  constitu- 
tional provision  that  each  House  shall  be  the  judge  of  the  election,  qual- 
ifications, and  returns  of  its  own  members,  and  is  likewise  inimical  to  the 
soundest  principles  of  national  unity.  We  cannot  safely  say  that  it  is 
simi)ly  the  duty  of  this  House  to  register  the  decrees  of  State  officials 
relative  to  the  election  of  its  own  members. 

The  foundation  of  this  contention  is  that  if  the  Congress  of  the  United 
States  fails  to  enact  election  laws,  and  makes  use  of  State  laws  for  its 
purposes,  it  adopts  not  only  the  laws  thus  enacted,  but  the  judicial  con- 
struction of  them  by  the  State  courts  as  well. 

We  do  not  agree  that  this  is  the  rule  except  as  it  may  apply  to  a 
"  positive  statute  of  the  State,  and  the  construction  thereof,  adopted  by 
the  local  tribunals,  and  to  rights  and  titles  to  things  having  a  permanent 
locality,  such  as  the  rights  and  titles  to  real  estate,  and  other  matters 
immovable  and  intra-territorial  in  their  nature  and  character."  (Swift 
rs.  Tyson,  16  Peters,  1-18.)  As  to  matters  not  local  in  their  nature,  the 
Supreme  Court  of  the  United  States  has  uniformly  held  that  the  de- 
cisions of  the  State  courts  were  not  binding  upon  it. 

Election  laws  are,  or  may  become,  vital  to  the  existence  and  stability 
of  the  House  of  Representatives,  and  to  hold  it  must  shut  itself  up  in 
the  narrow  limits  of  investigating  solely  the  question  as  to  whether  an 
election  has  been  conducted  according  to  State  laws  as  interpreted  by 
its  own  judiciar3^  would  be  to  yield  at  least  a  part  of  that  prerogative 
conferred  by  the  Constitution  exclusively  on  the  House  itself. 

It  may  be  stated  generally  that  the  House  of  I^epresentatives  will,  as 
a  general  rule,  follow  the  interpretation  given  to  a  State  law  regulating 
a  Congressional  election  by  the  supreme  court  of  a  State,  where  decis- 
ions have  been  continued  and  uniform  in  such  a  way  and  for  such  time 
as  to  become  the  fixed  and  settled  law  of  a  State.  The  processes  of  de- 
tenniuing  the  election  and  all  questions  relating  to  the  honesty  and 
bona  fides  of  ascertaining  who  received  the  highest  number  of  legal  votes 
must  of  necessity  forever  reside  exclusively  in  the  House. 

Where  decisions  have  been  made  for  a  sufficient  length  of  time  by 


348  DIGEST    OF   ELECTION    CASES. 

State  tribunals  construing  election  laws  so  that  it  may  be  presumed  that 
the  people  of  the  State  knew  what  such  interpretations  were  would  fur- 
nish another  good  reason  why  Congress  should  adopt  them  in  Con- 
gressional election  cases.  But  this  reason  would  be  of  little  weight 
when  the  election  had  been  held  in  good  faith  before  such  judicial  con- 
struction had  been  made,  and  where  there  was  a  conflict  of  opinion 
respecting  the  true  interpretation  of  a  statute  for  the  first  time  on 
trial. 

There  is  still  another  cogent  reason  why  this  House  may,  and  per- 
haps should,  disregard  the  decisions  of  State  courts  when  such  decisions 
are  made  in  cases  where  there  is  confessedly  no  jurisdiction  in  the  court 
to  pass  upon  the  question  which  it  assumes  to  pass  upon,  or  where  the 
court  assumes  to  pass  upon  questions  not  properly  involved  in  the  case 
before  it. 

We  cannot  express  in  better  language  the  eftect  which  obiter  dictum 
in  judicial  opinions  should  have  on  future  decisions  than  that  employed 
by  Mr.  Justice  Curtis  in  Carroll  vs.  Carroll,  16  How.,  279-87.  After  con- 
sidering the  maxim  at  common  law  of  stare  decisis,  the  learned  judge 
proceeds  to  discuss  the  34th  section  of  the  judiciary  act  in  connection 
with  the  maxim,  and  then  says: 

And  therefore  this  court,  and  other  courts  organized  under  the  common  law,  has 
never  felt  itself  bound  by  any  part  of  an  opinion  in  any  case  which  was  not  needful 
to  the  ascertainment  of  the  right  or  title  in  question  between  the  parties. 

Citing  some  cases  he  continues: 

And  Mr.  Chief  Justice  Marshall  said,  "It  is  a  maxim  not  to  be  disregarded  that  gen- 
eral expressions  in  every  opinion  are  to  be  taken  in  connection  with  the  case  in  which 
those  expressions  are  used."  If  they  go  beyond  the  case  they  may  be  respected,  but 
ought  not  to  control  the  judgment  in  a  subsequent  suit  when  the  verj'  point  is  pre- 
sented. The  reason  of  this  maxim  is  obvious.  The  question  actually  before  the  court 
is  investigated  with  care  and  considered  in  its  full  extent;  other  principles  which  may 
serve  to  illustrate  it  are  considered  in  their  relations  to  the  case  decided,  but  their 
possible  bearing  oji  all  other  cases  is  seldom  completely  investigated.  The  cases  of 
Ex-parte  Christy,  '.i  How.,  29ii,  and  Jenness  et  al.  vs.  Peck,  7  How.,  612,  are  in  illustra- 
tion of  the  rule  that  any  opinion  given  here  or  elsewhere  cannot  be  relied  on  as  bind- 
ing authority  unless  the  case  called  for  its  expression.  Its  weight  of  reason  must 
depend  on  what  it  contains. 

There  is  abundance  of  authority  running  through  all  the  reports  of 
the  judicial  opinions  of  the  various  States,  and  also  through  the  reports 
of  the  Supreme  Court  opinions  of  the  United  States,  that  they  will  not 
be  bound  by  the  obiter  of  their  own  decisions,  much  less  that  of  other 
courts.  And  where  there  is  a  conflict  in  the  decisions  of  a  State  supreme 
court,  other  State  courts  and  the  Supreme  Court  of  the  United  States 
will  adopt,  not  the  later,  but  that  line  of  decisions  which  best  speaks 
the  reason  and  common  sense  of  the  proposition  elucidated,  except  ia 
those  cases  purely  local,  as  pointed  out  in  Swift  vs.  Tyson,  supra. 

Another  suggestion  in  argument  needs  greater  amplification  than  we 
can  give  it  now,  which  is:  that  by  adopting  the  machinery  of  the  States 
to  carry  on  Congressional  elections  this  House  stands  in  the  nature  of 
an  appellate  court  to  interpret  these  election  laws  so  far  as  they  relate 
to  Congressional  elections;  that  it  ought  not  in  this  view  to  be  bound 
by  the  decisions  of  the  State  courts  at  all,  unless  the  reasons  given  by 
them  are  convincing  to  the  judicial  mind  of  the  House  while  acting  in 
the  capacity  of  a  court. 

It  need,  however,  hardly  be  added  that  a  line  of  carefully  considered 
cases  in  the  States,  in  which  such  courts  have  undoubted  jurisdiction,, 
so  far  as  they  wouhl  apply  in  i>rinciple,  would  go  a  long  way  towards 
settling  a  disputed  point  of  construction  in  anv  State  election  law.    In 


LYNCH    VS.    CHALMEES.  349 

fact  it  may  be  said  that  it  would  probably  be  the  duty  of  Congress  to 
follow  the  settled  doctrine  thus  established. 

It  now  becomes  necessary  to  review  the  opinion  of  the  supreme  court 
of  Mississippi  in  Oglesby  vs.  Sigimau.  As  will  be  seen  by  an  examina- 
tion of  the  case  it  was  a  mandamus  proceeding,  under  a  section  of  the 
Mississippi  Code,  to  compel  the  commissioners  of  election  in  Tunica 
County  to  reassemble  and  recount  the  votes  cast  in  that  county  on  the 
2d  day  of  November,  1880,  for  member  of  Congress  in  the  sixth  Con- 
gressional district  of  Mississippi.  The  allegations,  substantially,  are 
that  the  election  commissioners  counted  506  ballots  for  the  contestant 
in  this  case,  Mr.  Lynch,  which  had  upon  tliem  marks  and  devices,  and 
which  were  illegal  under  the  provisions  of  sections  137,  138,  139,  and 
140  of  the  Mississippi  Code,  and  ought  to  have  been  rejected,  instead  of 
being  counted  as  they  were.  A  fac  simile  of 'the  ballots  challenged  is 
set  out  on  the  record,  and  on  the  ticket  is  fqund  certain  printers'  dashes 
which  are  similar  to  those  challenged  in  the  pending  contest,  and  which 
are  the  distinguishing  marks  complained  of.  The  Oglesby-Sigiman  case 
"was  submitted  by  counsel  without  brief  or  oral  argument,"  as  we  are 
informed  by  the  coutestee's  brief  The  Judge  who  delivered  the  prin- 
cipal opinion  in  this  case  closes  the  opinion  of  the  court  with  this  re- 
mark : 

The  House  of  Representatives  of  the  Congress  of  the  United  States  is  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  members,  and  the  courts  of  the 
State  have  nothing  to  do  with  this  matter. 

The  case  might  properly  have  been  disposed  of  without  considering  any  of  the 
questions  made  by  the  record  except  that  last  mentioned,  but  the  attorney-general 
intormed  us  from  the  bar  that  doubts  exist  as  to  the  proper  interpretation  of  the  elec- 
tion law  of  1880,  and  that  criminal  prosecutions  have  been  instituted  against  the 
commissioners  of  election  of  some  of  the^ounties  for  supposed  violations  of  the  law 
in  reference  to  their  duties,  and  we  have  complied  with  his  request  in  declaring  our 
view  of  the  several  questions  presented  by  the  record. 

The  point,  as  remarked  by  the  judge,  on  which  the  case  might  have 
been  disposed  of,  was  as  to  whether  the  oflBcial  life  of  the  election  com- 
missioners was  functus  oflcio,  and  they  were  therefore  incapable  of  being 
brought  together  to  perform  official  duties;  which  being  determined  in 
the  affirmative,  the  court  had  nothing  to  do  but  to  dismiss  the  petition, 
as  it  did  when  it  refused  to  entertain  a  petition  on  behalf  of  Mr.  Lynch, 
made  on  the  9th  day  of  December,  1880,  to  prevent  the  governor  of 
the  State  from  issuing  to  the  contestee  a  certificate  of  election  as  mem- 
ber of  Congress  from  the  sixth  Congressional  district  of  Mississippi, 
on  the  ground  that  it  had  no  jurisdiction  of  the  subject-matter  of  the 
action. 

Had  the  Mississippi  supreme  court  stopped  here  the  question  of  how 
far  the  decision  of  State  courts  in  construeing  their  own  election  laws 
ought  to  bind  this  House  would  be  free  from  embarrassment ;  but  the 
court,  after  remarking  upon  its  want  of  jurisdiction  on  the  first  two 
XJoiuts,  stated  in  the  beginning  of  its  opinion,  and  having  disposed  of 
the  third  on  the  ground  that  the  official  duties  of  the  election  officers 
were  at  an  end  and  that  they  could  not  be  reassembled,  proceeded  to 
construe  the  law  relative  to  distinguishing  marks,  and  decide  what  were 
such  by  the  terms  of  the  Mississippi  Code  so  far  as  it  could  do  so,  the 
same  being  confessedly  not  before  it. 

It  is  sufficient  to  say  that  if  the  argument  sustaining  the  conclusions 
reached  by  the  Mississippi  court  met  our  views  of  the  true  construction 
of  the  law,  a  further  analysis  of  the  opinion  would  be  unnecessary;  but, 
as  we  cannot  agree  with  the  argument  or  the  conclusion  of  the  court, 
it  becomes  necessary  to  give  some  of  the  reasons  why  we  do  not  concur, 
and  whv  w<^  do  nut  fe<^l  bound  1»\  it. 


350  DIGEST    OF    ELECTION    CASES. 

First.  The  court  declared  in  terms  it  had  no  jurisdiction  of  the  sub- 
ject-matter  embraced  in  the  first  and  second  grounds  stated  in  the 
opinion.  The  third  ground  does  not  involve  a  construction  of  the  law^ 
and  of  course  cannot  be  considered  in  determining  the  question  raised 
in  the  pending  contest. 

It  is  with  great  hesitation  and  reluctance  that  we  feel  compelled  to 
disagree  with  the  eminent  gentleman  who  concurred  in  the  opinion,  and 
we  do  so  in  no  spirit  of  unjust  criticism,  for  we  would  much  prefer  to 
follow  rather  than  dissent  from  it.  Had  the  opinion  been  rendered 
before  the  election  of  1880,  or  become  one  of  settled  law  of  Mississip|)i, 
we  do  not  say  but  that  it  would  have  such  weight  with  us  that,  though 
we  might  disagree  with  it  in  logic,  we  might  feel  compelled  to  follow  it. 
We  think  that  the  decision  is  against  the  current  of  authority  and  con- 
trary to  the  well-settled  doctrine  heretofore  discussed ;  that  it  can  be 
regarded  as  obiter  dictum  merely,  and  as  the  opinion  of  eminent  gentle- 
men learned  in  the  law,  but  not  as  a  judicial  construction  of  the  code. 
It  may  happen,  should  the  supreme  court  of  Mississippi  adhere  in  the 
future'  to  the  reasons  advanced  in  this  case,  in  cases  where  it  has  juris- 
diction, that  this  House  will  adopt  them ;  but  until  the  happening  of 
this  event  we  cannot  say  that  the  reasons  given  in  the  Oglesby-Sigiman 
case  are  controlling. 

The  general  doctrine  in  constructing  election  statutes  is,  that  they  are 
to  be  construed  liberally  as  to  the  elector  and  strictly  as  to  the  ofticers 
who  have  duties  to  perform  under  them.  A  statute  directing  certain 
things  to  be  done  by  election  officers  ought  to  be  followed  by  them  with 
a  high  degree  of  strictness,  but  duties  to  be  performed  by  the  electors, 
as  declared  by  statute,  are  directions  merely,  which,  if  not  observed,  it 
is  true,  may  in  some  instances  defeaft  his  ballot;  but  when  there  is  an 
honest  intention  to  obey  the  law,  and  the  voter  is  not  put  in  ftiult  by 
any  laches  or  negligence  which  he,  by  the  use  of  reasonable  diligence, 
might  or  could  avoid,  or  where  there  is  no  palpable  intention  of  violat- 
ing the  law  apparent,  in  order  to  maintain  the  inestimable  right  of  vot- 
ing, courts  have  generally  adopted  the  most  liberal  construction. 

In  an  almost  unbroken  line  of  precedents,  from  the  foundation  of  the 
Government,  in  all  the  States  this  rule  has  been  declared.  (McCrary 
on  Elections,  sec.  403;  Kirki?*.  Rhoades,  46  Cal.,  398;  Prince  vs.  Skillen, 
71  Me.,  493;  People  vs.  Kilduflf,  15  III.,  492;  Millholland  vs.  Bryant,  39 
Ind.,  653;  The  State  ex.  rel.  vs.  Adams,  65  Ind.,  393;  Pradut  vs.  Ram- 
sey (5  Morris),  47  Miss.,  24,  and  many  other  cases  not  necessary  to  cite. 

In  the  present  case  we  find,  as  a  matter  of  fact,  that  there  was  no  in- 
tentional violation  of  the  law,  and  we  further  find,  as  a  matter  of  fiict, 
that  every  precaution  was  taken  which  a  reasonably  prudent  man  would 
be  likely  to  take  under  similar  circumstances;  that  the  contestant  in 
person  applied  to  those  whom  he  might  reasonably  believe  to  be  well 
versed  in  the  art  of  printing,  and,  with  the  law  in  their  hands,  discussed 
the  question  of  distinguishing  marks,  and  was  assured  that  tickets 
would  be  prepared  and  printed  strictly  within  the  letter  of  the  statute. 
After  the  tickets  were  printed  the  contestant  was  assured  that  they 
were  lawful,  and  might  be  relied  upon  as  not  being  obnoxious  to  tlie 
law.  It  does  not  appear  that  the  printer's  dashes  which  appear  on  the 
ticket  were  observed  by  the  contestant  or  his  friends,  at  least  until  the 
morning  of  the  election,  after  they  were  all  distributed,  and  it  was  too 
late  to  furnish  other  tickets ;  and  when  the  dashes  were  discovered  it 
was  stoutly  contended  that  they  were  not  distinguishing  marks  within 
the  meaning  of  the  law.  It  also  appears  that  there  was  no  intention  on 
the  part  of  any  one,  either  those  connected  with  the  printing  of  thein^ 


LYNCH    VS.    CHALMERS.  351 

or  those  for  whose  use  they  were  designed,  to  print  the  dashes  in  the 
tickets  for  the  purpose  of  distinguishing  them  from  any  other  ballots  of 
any  other  party. 

it  is  also  proved  that  tickets  precisely  similar  to  those  that  are  ques- 
tioned in  this  contest,  in  so  far  as  the  printer's  dashes  are  concerned, 
were  printed  and  furnished  to  the  opposing  party  in  at  least  one  of  the 
counties  in  the  sixth  Congressional  district  of  Mississippi,  and  were  un- 
questionably voted  without  a  suspicion  that  they  were  obnoxious  to  the 
laAv.  To  further  illustrate  the  entire  good  faith  with  which  these  tick- 
ets were  printed  and  used,  and  how  they  would  be  regarded  by  practi- 
cal printers,  the  testimony  of  Charles  Winkley,  one  of  contestee's  wit- 
nesses, becomes  very  important ;  it  is  as  follows: 

Cross-interrogatory  2.  Are  yon  a  practical  printei',  and  have  yon  critically  exam- 
ined the  "marks,"  so  called,  on  the  tickets  of  Lyiwh,  rejected  from  Warren  County  f 
If  so,  were  not  these  only  the  usual  printer's  dashes  to  be  found  generally  in  news- 
paper articles  and  upon  tickets  generally  f 

Answer.  I  am  a  practical  printer ;  I  have  not  critically  examined  the  tickets,  but 
the  dashes  used  are  such  as  any  printer  of  taste  would  either  put  in  or  leave  out,  ac- 
cording as  he  wanted  to  lengthen  or  shorten  tl^e  ticket  to  suit  the  paper,  or  other- 
wise. 

Cross-interrogatory  3.  If  you  were  called  upon  generally  to  print  tickets,  without 
any  special  instructions,  is  it  likely  that  you  would  have  printed  the  tickets  similar 
to  those  complained  of  and  rejected  from  Warren  County  ? 

Answer.  I  might  or  might  not,  just  as  it  might  have  seemed  to  strike  me  at  the 
time. 

And  further  deponent  saith  not.     (Eec,  p.  261.) 

It  further  appears  that  printers'  dashes,  such  as  were  used  on  the 
tickets  in  this  case,  are  universally  known  among  printers  as  punctua- 
tion marks ;  in  fact  most  of  the  characters  which  appear  upon  these 
tickets  are  set  down  in  Webster's  Unabridged*  Dictiouary  under  the 
head,  •'  marks  of  punctuation^  It  is  known  to  the  most  casual  reader 
of  print  that  printers'  dashes  frequently  occur  in  books,  newspapers, 
and  publications  of  all  kinds,  and  to  the  common  understanding  to 
argue  that  they  are  of  themselves  "  marks  or  devices''  would  not  meet 
aj)proval. 

We  have  already  found  that  they  were  not  used  or  placed  upon  the 
tickets  for  the  purpose  of  distinguishing  them  from  any  other  ballots, 
nor  as  a  device  for  that  purpose,  and  not  being  of  themselves  devices 
we  cannot  say  that  they  are  inimical  to  the  statute.  It  is  true  that 
printers'  dashes  riiay  be  intended  and  used  as  a  mark  or  device,  and  so 
may  diflerent  kinds  of  type,  or  punctuation  marks  of  dili'erent  kinds. 
Arrangement  of  names  and  heading  of  tickets  may  also  be  made 
"marks  and  devices,"  and  it  seems  to  us  that  the  reasonable  interpre- 
tation of  the  law  would  be,  first,  in  the  use  of  these  appliances,  which 
are  ordinarily  used  in  printing,  were  they  so  arranged  as  that  they  be- 
come "marks  and  devices"!  and  were  they  so  used  and  arranged  for 
that  purpose?  and,  secondly,  was  the  unusual  manner  of  their  being- 
used  such  as  might  or  ought  to  put  a  reasonably  prudent  man  on  his 
guard  ? 

This  view  of  the  law  would  be  the  extreme  limit  to  which  we  think 
we  would  be  justified  in  going  under  well-established  principles  of  con- 
struction in  like  cases.  No  case  has  been  called  to  our  notice  which 
goes  this  far. 

Wliat  we  have  here  remarked  does  not,  of  course,  apply  to  the  mark& 
or  devices  ordinarily  used  on  tickets,  such  as  spread-eagles,  portraits, 
and  the  like;  those  would  be  considered  "marks  and  devices"  of  them- 
selves, and  not  necessary  in  the  ordinary  mechanical  art  of  printing. 
The  use  of  the  latter  would  be  considered  a  violation  of  the  statute  in 


352  DIGEST  OF  ELECTION  CASES. 

any  aspect  of  the  case,  while  the  use  of  the  former  seems  to  us,  in  any 
view  of  the  law,  ought  to  be  restricted  to  an  intentional  or  manifest 
misuse. 

The  evident  object  and  intention  of  prohibitory  legislation  against 
'"marks  and  devices"  is  to  secure  the  freedom  and  purity  of  elections, 
to  preserve  the  secrecy  of  the  ballot,  and  place  the  voter  beyond  the 
reach  of  improper  restraint  or  influence  in  casting  his  ballot,  and  we 
<}annot  better  express  ourselves  upon  this  subject  than  by  quoting  the 
supreme  court  of  California  in  Kirk  vs.  Rhoades,  supra,  which  is  as  fol- 
lows: 

The  object  of  these  provisions  is  to  secure  the  freedom  and.  i)iirity  of  elections,  and 
to  place  the  elector  above  and  beyond  the  reach  of  improper  influences  or  restraint  in 
casting  his  ballot.  When  all  the  ballots  cast  are  similar  in  appearance,  and  without 
any  distinguishing  mark  or  characteristic,  the  most  dependent  elector  in  the  county 
may  vote  with  perfect  freedom,  as  his  employer  or  other  person  upon  whom  he  is  de- 
pendent has  no  means  of  ascertaining  for  whom  he  voted. 

It  will  bo  observed  that  there  are  two  classes  of  things  required  by  section  1191. 
Over  one  class  the  elector  can  have  no  control ;  over  the  other  he  has  perfect  control. 

For  instance,  whether  the  paper  on  which  his  ballot  was  printed  was  furnished 
by  the  secretary  of  state  or  not,  or  upon  paper  in  every  respect  precisely  like  such 
paper,  or  whether  it  is  four  inches  in  width  and  twelve  inches  in  length,  or  falls 
«hort  of  this  measurement  by  an  eighth,  or  a  sixth,  or  a  fourth  of  an  inch,  or 
whether  it  is  printed  in  long  primer  capitals  or  not,  or  whether  it  is  single  or 
•double  leaded — these  are  matters  over  which  the  great  majority  of  electors  have  no 
control,  and  about  some  of  which  they  are  entirely  ignorant.  The  ballots  are  always 
furnished  on  the  day  of  election  by  committees  appointed  for  the  purpose  by  the 
respective  political  parties,  or  by  independent  candidates  or  their  friends.  The  elector 
in  but  few  instances  ever  sees  these  tickets  until  he  approaches  the  polls  to  cast  his 
ballot,  and  it  would  be  absurd  in  the  extreme  to  require  him  to  have  a  rule  by  which 
he  could  measure  and  ascertain  whether  his  ticket  exceeded  or  fell  short  of"  twelve 
inches  in  length  by  a  sixth  of  an  inch,  or  only  by  an  eighth  of  an  inch,  or  whether  the 
color  of  his  ticket  was  of  the  exact  shade  of  the  paper  furnished  by  the  secretary  of 
state. 

Again,  not  one  elector  in  five  hundred  knows  the  difference  between  long  primer 
capitals  or  any  other  capitals,  or  whether  his  ticket  is  single  or  double  leaded.  It  is 
impossible  that  he  should  know  or  be  able  to  determine  these  facts.  This  very  case 
presents  a  striking  instance  of  the  absurdity  of  requiring  the  elector  to  judge  of  these 
facts. 

The  respondent,  Rhoades,  by  his  counsel,  objected  to  counting  twenty-two  ballots 
for  Kirk,  upon  the  grounds  that  they  were  not  printed  in  long  primer  capitals,  and 
that  the  lines  -were  double-leaded. 

Such  was  this  case.  Section  1208  expressly  required  a  ballot  found  in  the  box  not 
conforming  to  the  requirements  of  section  1191  to  be  rejected.  This  section  did  not, 
as  the  Mississippi  law  does,  omit  to  state  that  this  rejection  should  be  of  the  prohibited 
ballots  when  and  after  found  in  the  box,  and  yet  the  court  held  expressly  that  as  to 
all  matters  regarding  characterof  the  type,  the  paper,  the  width  and  length  of  ticket, 
they  were  matters  that  ordinai-ily  were  not  under  the  control  of  the  voter,  and  that 
the  statute  should  be  held  directory  as  to  such  matters,  and  that  the  claim  of  respondent 
that  the  22  votes  for  Kirk  should  be  rejected  on  account  of  not  being  printed  in  long 
primer  capitals,  and  that  the  lines  were  double-leaded,  was  by  the  court  overruled.  lu 
the  conclusion  of  its  opinion  the  court  said  : 

"To  defeat  the  will  of  the  people  in  any  election  it  would  only  be  necessary  to 
furnish  the  electors,  or  a  portion  of  them,  with  tickets  in  which  the  printed  lines 
were  one-forty-fourth  part  of  an  inch  farther  apart  than  required  by  the  code — a  dif- 
ference which  cannot  be  detected  except  by  an  expert.  There  are,  however,  other 
requirements  of  the  code  within  the  power  of  the  elector  to  control,  and  these,  if 
willfully  disregarded,  should  cause  his  ballot  to  be  rejected.  He  can  see,  for  instance, 
that  his  ballot  is  free  from  every  mark,  character,  device,  or  thing  that  would  enable 
any  one  to  distinguish  it  by  the  back,  and  if,  in  willful  disregard  of  law,  he  places  a 
name,  number,  or  other  mark  on  it,  he  cannot  complain  if  his  ballot  is  rejected  and  he 
loses  his  vote." 

The  above  language  quoted  from  this  case  is  the  language  of  the  court  below.  The 
supreme  court,  after  quoting  this  language  in  the  opinion,  closes  its  opinion  in  these 
words : 

"We  agree  with  the  county  judge  in  his  conclusiim  that  the  twenty-two  ballots 
spoken  of  were  properly  counted  for  Kirk,  and  that  the  motion  to  strike  them  from 
the  count  was  properly  denied.    Judgment  affirmed." 


LYNCH    VS.    CHALMERS.  353 

We  do  not  feel  called  upon  to  give  our  reasons  why  we  dissent  from 
much  that  is  said  in  the  opinion  in  the  Mississippi  case.  It  may  not 
be  out  of  place  to  remark  that  some  of  the  reasons  on  which  the  opinion 
is  based  appear  to  be  directly  opposed  to  the  current  of  authority  upon 
which  like  legislation  is  maintained.  It  is  remarked  that  "  its  object  is 
to  secure  absolute  uniformity  as  to  the  appearance  of  ballots,  in  order 
that  intelligence  may  guide  the  voter  in  his  selection,  and  not  a  mere 
device  or  mark  by  which  ignorance  may  be  captivated." 

Our  understanding  has  l3een  that  these  laws  were  designed  to  pro- 
tect the  weak  and  ignorant  against  undue  restraint  by  the  strong  and 
powerful,  to  make  the  ballot  secret  and  free,  and  place  the  dependent 
on  the  same  plane  as  the  most  favored;  and  that  laws  of  this  character 
ought  not  to  be  so  construed  as  to  become  a  snare  to  the  very  persons 
for  whose  protection  they  were  designed.  .The  learned  and  powerful 
need  no  such  protection.  The  laws  are  designed  for  the  protection  of 
the  weak  and  unlearned.  It  seems  to  us  that  the  construction  given  to 
this  law  inevitably  establishes  a  basis  of  intelligence — ot  being  able  to 
read,  at  least,  for  if  you  strip  all  ballots  of  every  punctuation  mark,  and 
all  dissimilarity  in  print,  and  make  them  bf  the  same  paper,  of  the  same 
size,  and  similarly  spaced,  the  man  who  is  unable  to  read  will  be  en- 
tirely at  the  mercy  of  his  more  favored  neighbor,  and  thus  you  will  de- 
feat the  very  thing  which  the  law  was  intended  to  prevent. 

It  is  urged  that  the  construction  given  to  this  law  defeats  one  of  the 
provisions  of  the  constitution  of  Mississippi,  which  extends  the  right 
of  suffrage  to  all  without  reference  to  illiteracy.  This  point  not  having 
been  referred  to  by  the  court  in  Mississippi,  we  infer  that  it  escaped  their 
attention,  and  we  do  not  care  to  go  into  the  question.  It  is  quite  evident 
to  us  that  these  laws  must  pass  under  judicial  notice  frequently  in  the 
future,  and  we  are  quite  content  not  to  anticipate  the  results  which  may 
be  hereafter  reached. 

We  have  examined  the  question  of  "printers'  dashes,"  in  the  first  in- 
stance, because  if  we  arrived  at  the  same  conclusion  respecting  their 
illegality  as  the  contestee  did,  it  was  manifest  to  us  from  the  beginning 
that  we  would  not  have  to  go  farther,  as  this  would  control  the  case. 
Having  arrived  at  a  conclusion  adverse  to  contestee,  it  becomes  mate- 
rial to  next  examine  exceptions  filed  by  him  to  certain  of  the  testimony 
printed  in  the  record.    His  exceptions  are  as  follows  : 

JoHx  R.  Ltnch,  contestant, 

vs. 

James  R.  Chalmers,  contestee. 

The  contestee  comes  in  proper  person  and  excepts  to  so  mncli  of  Exhibit  D  filed  as 
additional  testimony  in  this  case,  and  appearing  from  page  225  to  page  243,  inclusive, 
of  the  record : 

1.  Because,  there  is  no  such  officer  as  chief  supervisor  of  elections  for  either  the 
northern  or  southern  district  of  Mississippi  known  to  the  laws  of  the  United  States 
and  authorized  to  make  such  reports. 

2.  Because  there  is  no  law  authorizing  the  supervisors  of  elections  to  make  any  re- 
ports of  the  election  in  any  district  outside  of  a  city  of  twenty  thousand  inhabitants. 

3.  Because  these  pretended  reports  are  not  signed  by  both  of  the  pretended  super- 
visors at  each  precinct. 

4.  Because  there  is  no  evidence  that  the  parties  signing  these  reports  as  supervisors 
were,  in  fact,  appointed  United  States  supervisors  of  elections. 

5.  Because  there  is  no  evidence  that  the  parties  whose  names  appear  to  be  signed  to 
said  reports  actually  signed  the  same. 

6.  Because  the  pretended  reports  were  not  presented  as  an  exhibit  to  contestant's 
deposition  when  tiiken,  and  were  gathered  up  by  contestant  and  filed  here  long  after 
the  time  for  taking  testimony  in  this  case. 

H.  Mis.  35 23 


354  DIGEST    OF    ELECTION    CASES. 

7.  Because  the  pretended  certificate  of  Orlando  Davis  appears  on  its  face  to  have 
heen  signed  September  13,  1881,  long  after  the  time  for  taking  testimony  in  this  case. 

8.  Because  said  papers  appear  on  their  face  to  be  tiled  with  the  Clerk  of  the  Honse 
of  Representatives  on  the  21st  of  December,  1881,  long  after  the  time  for  taking  testi- 
mony in  this  case,  and  do  not  appear  to  have  been  transnjitted  by  any  authorized 
officer  of  law. 

JAS.  R.  CHALMERS, 

Conteatee. 

Before  passing  upon  the  question  we  call  attention  to  the  sections  of 
the  Ee vised  Statutes  bearing  on  the  question  of  supervisors'  returns. 
Sections  2011  and  2012  authorize  the  judge  of  the  circuit  court,  on  the 
application  in  writing  of  ten  good  citizens,  to  appoint  in  each  election 
precinct,  at  which  a  Eepresentative  in  Congress  is  to  be  voted  for,  two 
citizens  of  different  political  parties  as  supervisors  of  elections.  Sec- 
tion 2025  requires  the  circuit  court  to  designate  a  circuit  court  com- 
missioner to  act  as  chief  supervisor  for  the  district.  Section  2017  speci- 
fies the  duties  to  be  performed  by  them,  among  which  are  to  personally 
scrutinize  the  manner  in  which  the  voting  is  done,  and  in  which  the 
poll-books,  tally,  or  check-books  are  kept.  Section  2018  requires  that, 
to  the  end  that  each  candidate  for  Eepresentative  in  Congress  shall 
obtain  the  benefit  of  every  vote  cast  for  him,  the  supervisors  shall 
scrutinize  personally  the  count,  and  canvass  each  ballot,  and  make  and 
forward  to  the  chief  supervisor  (Sec.  2025)  certificates  and  returns  of 
all  such  ballots  as  such  officer  may  require. 

Section 2026  requires  the  chief  supervisor  to  "receive,  preserve,  and  file  all  oaths 
of  office  of  supervisors  of  election,  and  of  all  special  deputy  marshals,  appointed 
under  the  provisions  of  this  title,  and  of  all  certificates,  returns,  reports,  and  records  of 
every  kind  and  nature  contemplated  or  made  requisite  by  the  provisions  hereof,  save 
where  otherwise  herein  specially  directed." 

The  contestant  contends  that  these  sections  apply  to  country  super- 
Aisors  as  well  as  to  supervisors  appointed  in  cities  of  20,000  or  more  in- 
habitants ;  while  the contestee  claims  that  section  2011  is  made  up  i)artly 
of  the  acts  of  1871  and  1872 ;  that  sections  2012  to  2027,  inclusive,  are 
taken  from  the  act  of  1871,  and  have  no  reference  to  supervisors  ap- 
pointed in  counties  or  parishes  on  the  petition  of  ten  citizens,  and  that 
2029  is  also  taken  from  acts  of  1872.  Eeference  is  made  by  the  contestee 
to  the  Congressional  Globe,  page  4455,  second  session  Forty  second 
Congress,  to  the  debate  had  when  this  provision  was  pending  in  th© 
House. 

It  is  needless  to  enter  into  an  extended  history  of  this  legislation. 
The  disputed  question  between  parties  is  this :  The  contestant  claims 
that  the  statute  requires  the  supervisors  of  elections  in  country  pre- 
cincts to  make  and  keep  an  official  record  of  the  result  of  the  votes 
polled,  of  the  manner  of  conducting  the  election,  the  truth  or  fairness  of 
the  canvass  and  its  conduct,  and  tlie  honesty  of  the  count,  if  the  chief 
supervisor  shall  so  direct,  and  return  the  same  to  the  chief  supervisor, 
who  shall  keep  and  preserve  them,  and  in  accordance  with  law  file  a 
certified  copy  with  the  Clerk  of  the  House  of  Eepresentatives ;  that 
these  returns,  or  duly  certified  copies  of  them,  are  competent  evidence 
in  contested  election  cases.  We  copy  the  following  strong  statement 
made  by  contestant's  counsel  in  support  of  this  contention  : 

That  where  the  law — either  statutory  or  other — makes  a  document  a  public  record 
or  file,  and  requires  it  to  be  preserved  as  such,  and  puts  the  custody  thereof  in  the 
hands  of  an  officer,  there  as  a  matter  of  common  law,  and  without  statutes  authoriz- 
ing the  custodian  to  certify  to  copies  of  such  record,  the  common  law  will  admit  the 
copy  certified  by  the  custodian  as  evidence  of  what  is  provable  in  any  case  by  the 
original,  is  a  matter  of  elementary  law.  The  opposing  brief  seems  to  controvert  this, 
as,  for  example,  at  the  bottom  of  page  29,  where  it  cites  section  104  of  McCrary's  Elee. 


LYNCH    VS.    CHALMERS. 


355 


tioTi  Laws.     That  citation  wholly  fails  to  meet  or  negative  the  last  preceding  propo- 
sition.    That  section  104  is  a  statement  simply  to  this  effect : 

"That  statute  certifying  officers  can  only  make  their  certificates  evidence  of  the 
facts  which  the  statute  requires  them  to  certify  ;  and  when  they  undertake  to  go  be- 
yond this  and  certify  other  facts  they  are  unofficial,  and  no  more  evidence  than  the 
statement  of  an  unofficial  person." 

We  admit  there  is  much  force  in  this  argument.  But  the  conclusions 
we  have  reached  do  not  make  it  necessary  for  us  to  decide  this  question, 
and  we  do  not.  We  present  the  following  analysis  of  the  various  pre- 
cincts upon  the  view  that  it  is  unnecessary  to  look  to  the  supervisors' 
report  for  any  purpose. 

WARREN    COUNTY. 

We  correct  the  returns  made  in  this  county  as  follows  :  The  vote  as 
returned  to  the  secretary  of  state  was:  Lynch,  57;  Chalmers,  1,014; 
we  add  the  rejected  vote,  Lynch,  2,029;  Chalmers,  20. 

The  vote  returned  by  the  inspectors  to  the  commissioners  of  election, 
and  by  the  commissioners  of  election  to  t;he  secretary  of  state,  appears 
in  the  subjoined  tabulated  statement. 


Adams 

Bolivar 

Claiborne . . . 

Coaboma 

Issaqaena... 

Jefferson 

Qnitman 

Sbarkey  

Tunica 

Warren 

Wasbington. 
Wilkinson  .. 


Total. 


Comities. 


Msyority  for  Lynch 

Majority  for  Chalmera. 


Inspectors'  returns  to  com- 
missioners. 


Lynch. 


1,214 
1,713 

288 
1,221 
1,122 

383 
83 

175 

506 
2,086 
1,298 

814 


10,  903 
10, 240 


663 


Chalmers. 


1,419 

403 

1,061 

576 

174 

1,043 

153 

484 

239 

1,034 

1,963 

1,691 


Commissioners'  returns  to 
secretary  of  state. 


Lynch. 


898 
979 
288 
352 
333 
136 

83 
175 
506 

57 
772 
814 


10,  240 


5,393 


Chalmers. 


1,387 

301 

1,061 

225 

59 

951 

153 

484 

239 

1,014 

1,607 

1,691 


9,172 
5,393 


.3,779 


The  tabulated  statement  below  shows  the  number  of  votes  rejected 
bv  the  commissioners  of  election  from  the  counties  named : 


Votes  rejected  by 
missioners. 

com- 

Lynch. 

Chalmers. 

316 
734 
889 
789 
247 
526 

82 

102 

861 

116 

99 

35« 

3,481 

1  048 

356  DIGEST   OF    ELECTION    CASES. 

ADAMS  COUNTY. 

The  returns  from  Dead  Man's  Bend  precinct  were  rejected  by  the 
commissioners  of  election  on  the  grouud  that  there  was  no  list  of  voters 
set  up  with  the  returns  by  the  precinct  officers.  At  page  75  of  the 
Record,  William  J.  Henderson,  one  of  the  commissioners  of  election, 
testifies  that  the  vote  of  that  precinct  was:  For  Lynch,  85;  for  Chal- 
mers, 15.  (See  also  Record,  page  88.)  We  think  the  vote  of  this  pre- 
•cinct  should  be  counted.  It  was  rejected  for  unsubstantial  reasons ;  no 
fraud  is  charged,  and  it  would,  to  our  mind,  be  the  grossest  injustice  to 
•deprive  the  voters  of  their  right  to  participate  in  a  choice  for  their  Rep- 
xesentative  on  this  ground. 

Palestine  Precinct. 

As  to  this  precinct,  Mr.  Lynch  proves  by  William  J.  Henderson,  at 
Uecord,  page  75,  of  his  testimony,  that  the  box  was  rejected  because 
there  were  35  more  ballots  found  therein  than  there  were  names  on  the 
list  of  voters  kept  by  the  clerks.     Mr.  Henderson  says : 

The  Palestine  returns  were  rejected  because  the  box  contained  35  more  ballots  than 
•were  accounted  for  in  the  list  of  voters  as  kept  by  the  clerks.  *  *  *  To  the  best 
-of  my  recollection,  the  inspectors  sent  up  their  returns,  stating  that  there  were  in  the 
box  17  votes  for  Chalmers  and  270  votes  for  Lynch,  the  latter  number  including  35 
votes  which  were  found  to  be  in  excess  of  the  lit>t  of  voters  as  kept  by  the  clerks. 

Lennox  Scott,  another  witness,  who  was  a  United  States  supervisor, 
testifies,  on  Record,  page  187,  that  to  his  own  i)ersonal  knowledge  231 
votes  were  cast  at  this  precinct  for  Mr.  Lynch.  An  effort  was  made  to 
-explain  how  the  excess  of  35  votes  appeared.  The  evidence  on  this 
subject  is  not  very  satisfactory,  but  we  think,  on  the  whole,  that  Mr. 
Lynch  should  receive  231  votes  and  Mr.  Chalmers  17  from  this  precinct. 
(See  also  Record,  page  191,  testimony  of  H.  C.  Bailey.) 

BOLIVAR  COUNTY. 

Under  section  138  of  the  Mississippi  code,  the  inspectors  of  elections 
are  required  to  send  up  to  the  commissioners  the  whole  number  of  votes 
cast  at  the  poll,  and  the  commissioners  under  section  140  of  the  code 
are  required  to  "  transmit  to  the  secretary  of  state,  to  be  filed  in  his 
oflSce,  a  statement  of  the  whole  number  of  votes  given  in  their  county 
for  each  candidate." 

This  duty  being  enjoined  by  statute,  their  certificate  is  evidence  of 
the  fact  that  the  number  of  votes  which  they  certify  were  given.  That 
return  was  put  in  evidence,  Irom  which  it  appears  they  returned  Lynch 
979,  Chalmers  301.  It  further  appears  by  a  certificate  signed  by  the 
commissioners  of  election  that  they  threw  out  Australia  precinct,  cou- 
tainiug  30  Democratic  votes  and  192  Republican  votes,  because  the  re- 
turns were  "  not  certified  to  by  the  inspectors  or  the  clerks." 

Bolivar  Precinct. 

It  appears  from  the  same  certificate  that  in  this  precinct  they  rejected 
45  Democratic  votes  and  311  Republican  votes  for  the  same  reason. 
Another  informality  is  noted,  which  is  that  the  "  tally  sheets"  were  kept 
on  four  pieces  of  ijaper,  and  that  they  do  not  show  what  offices  the  per- 
sons whose  names  appear  on  the  tally  sheets  were  voted  for.  This  can 
hardly  be  considered  to  be  a  good  ground  when  the  ballots  were  before 
i;hem,  and  they  could  have  looked  and  seen. 


LYNCH    VS     CHALMERS.  357 

Holmes'  Lake  Preeinct. 

As  to  Holmes'  Lake  precinct  it  appears  that  the  ballot-box  was  never 
opened,  and  the  ballots  counted  by  the  inspectors  and  clerks.  Tlie  com- 
missioners refused  to  open  and  count  the  votes,  and  perhaps  were  not 
authorized  to  do  so  by  law.  The  voters  of  this  precinct  are  deprived  of 
the  right  to  participate  in  the  choice  of  their  Representative,  by  the 
conduct  of  their  present  officers. 

Glencoe  precinct  was  rejected  because  the  vote  was  not  entirely  counted 
on  the  night  after  the  election,  and  the  returns  were  signed  by  only  two 
of  the  election  officers,  not  a  majority.  The  commissioners  certify  that 
these  imperfect  returns  show  that  27  Democratic  votes  and  233  Repub- 
lican votes  were  rejected  on  account  of  this  informality.  In  right  and 
justice  these  votes  ought  to  be  counted,  but  we  do  not  do  so  on  the 
statement  made  by  the  commissioners. 

ISSAQUENA  COUNTY. 

There  are  two  statements  in  the  record,  which,  taken  together,  enable 
us  with  reasonable  certainty  to  arrive  at  the  vote  cast  in  three  of  the 
four  rejected  precincts  of  this  countj'.  The  first  i^  the  certificates  of 
election  made  by  the  commissioners  of  election  to  the  secretary  of  state, 
and  found  on  page  17  of  the  Record. 

Hay's  Landing. 

They  say  with  regard  to  this  poll  that  they  find  75  votes  reported  by 
the  election  officers;  on  four  of  the  ballots  all  the  names  are  scratched 
off,  and  they  reject  the  poll  because  there  was  no  separate  list  of  voters 
kept.  At  page  89  of  the  Record,  Richard  Griggs,  clerk  of  the  chancery 
court  for  Issaquena  County,  certifies,  under  the  seal  of  said  court,  that 
the  paper  appearing  on  that  page  of  the  Record  is  a  true  and  correct 
transcript  of  the  election  returns  made  by  the  election  officers  as  ap- 
pears of  record  in  his  office,  by  which  it  appears  Chalmers  received  34 
votes  and  Mr.  Chalmers  29  votes  for  member  of  Congress.  The  com- 
missioners of  election  for  that  county  certify  to  the  secretary  of  state  that 
they  rejected  this  precinct  return,  and  the  clerk  of  the  court  certifies  that 
that  return  is  on  file  in  his  office,  a  copy  of  which  he  gives.  The  two 
statements  taken  together  are  prima  facie  evidence  of  the  vote  received 
at  that  poll.  The  highest  number  of  votes  appearing  on  the  tally-list  as 
certified  by  the  clerk  agrees  with  the  number  the  commissioners  say 
were  returned  from  that  poll.  The  commissioners  are  authorized  by  law 
to  certify  as  a  fact  the  number  of  votes  cast ;  and  the  clerk  of  the  court 
is  authorized  by  law,  as  the  keeper  of  public  records,  to  give  certified 
transcripts  thereof. 

For  the  reasons  given  in  reference  to  Hay's  Landing  precinct,  we  also 
count  Ben  Lomond  and  Duncansby  precincts ;  by  reference  to  which 
it  will  be  seen  that  Lynch's  vote  was  332  and  Chalmers's  20  in  the  former 
(Record,  pages  17  and  90),  and  371  for  Lynch,  and  for  Chalmers  46,  in 
the  latter. 

JEFFERSON  COUNTY. 

The  only  precinct  in  disi^ute  in  this  county  is  the  Rodney  precinct  poU, 
the  vote  of  which  is  admitted  to  be  247  for  Lynch  and  92  for  respondents 
This  is  shown  also  by  the  report  of  the  commissioners,  at  page  19  of  the- 
Record.  Having  come  to  a  conclusion  adverse  to  contestee  in  reference 
to  marked  ballots,  we  count  tliis  poll  as  retuini'd. 


358  DIGEST    OF    ELECTION    CASES. 

WASHINGTON  COUNTY. 

The  evidence  in  the  Record,  at  page  23,  shows  that  the  Stoneville  pre- 
cinct was  rejected  by  the  commissioners  for  want  of  a  statement  signed 
by  the  inspectors  of  election.  Page  206,  John  Jones  testifies  that  at  this 
poll  there  were  315  cast  for  Mr.  Lynch  and  GO  for  Mr.  Chalmers.  He 
says:  "I  saw  the  votes  counted,  and  know  that  to  be  the  fact  and  cor- 
rect." This  testimony  is  uncontradicted,  and  is  sufficient  to  put  the  re- 
turned member  to  proof  to  show  why  the  vote  should  not  be  counted.  It 
was  the  unquestioned  duty  of  the  inspectors  to  make  return  of  this  vote 
as  it  was  cast.  The  election  appears  to  have  been  conducted  in  a  quiet 
and  peaceable  manner,  and  no  sufficient  reason  having  been  given  by 
the  commissioners  of  elections  why  they  did  not  return  the  vote,  we  think 
it  right  and  fair  to  count  it  as  the  testimony  shows  it  was  cast.  As  to 
Lake  Washington  and  Refuge  pre(5incts,  there  is  no  testimony  in  the 
Record  showing  what  the  vote  as  cast  was.  If  the  supervisors'  returns 
are  rejected,  and  the  contestee's  exceptions  sustained,  it  leaves  us  with- 
out means  to  ascert.iin  the  true  vote  at  these  precincts. 

COAHOMA  COUNTY. 

In  this  county  the  commissioners  in  making  the  certificate  to  the  sec- 
retary of  state  omit  to  state  what  the  vote  was  in  the  rejected  precincts. 
There  were  elections  held  in  seven  precincts  in  this  county,  six  of  which 
were  rejected  by  the  commissioners,  and  one.  Friar's  Point,  was  counted. 
There  is  in  the  Record,  at  page  98,  a  certificate  made  by  R.  N.  Harris, 
clerk  at  the  circuit  court,  giving  a  transcript  of  the  tally-lists  signed  by 
the  inspectors  of  four  precincts  :  Clarksdale,  which  shows  that  Lynch 
received  307  and  Chambers  117  votes;  in  Sunflower,  Lynch  received 
32  and  Chambers  received  77  ;  Dublin,  Lynch  70,  Chambers  63  ;  Mag- 
nolia, Lynch  109,  Chalmers  23.  At  the  Delta  precinct  the  inspectors 
and  clerks  did  not  count  the  votes,  and  this  box  was,  therefore,  in  the 
same  condition  as  the  one  at  Holmes  Lake.  The  .lonestown  precinct  is 
omitted  because  the  clerk  fails  to  certify.  The  clerk's  certificate  is 
probably  evidence  that  these  papers  are  on  file  in  his  office,  and  that 
they  are  the  returns  sent  up  by  the  precinct  election  officers.  As  to 
whether  they  are  evidence  as  to  the  fact  whether  so  many  voters  voted 
for  the  persons  named  for  the  offices  named  is  submitted  to  the  House. 

FRAUDULENT  RETURNS. 

At  Kingston  precinct,  in  Adams  County,  it  is  conclusively  shown  by 
the  testimony  of  Jerry  Taylor,  Henry  B.  Fowles,  Abraham  Teltus, 
Smith  Kinney,  Harry  Smith,  jr.,  and  William  H.  Lynch,  that  the  vote 
as  cast  was  350  and  for  Chalmers  50,  The  vote  as  returned  by  the  pre- 
cinct election  officers  was  Lynch  160,  Chalmers  249.  It  is  shown  that 
there  was  abundant  opportunity  for  tampering  with  this  box  at  the 
noon  recess,  when  it  was  taken  to  the  residence  of  one  Dr.  Farrar,  and 
the  Rei)ublicans  were  excluded  from  the  presence  of  the  box,  and  the 
aperture  was  not  sealed.  The  Republican  inspector  who  had  the  key 
could  not  have  stuffed  the  ballot-box  in  its  absence.  We  think  under 
tlie  evidence  this  vote  should  be  corrected  so  as  to  show  the  true  vote 
as  cast,  as  testified  to  by  these  witnesses  who  are  uncontradicted.  We 
therefore  add  190  votes  to  Mr.  Lynch's  aggregate  and  deduct  that  num- 
ber from  Mr.  Chalmers. 


LYNCH    VS.    CHALMERS.  359 

The  corrected  vote  of  the  parties  will  stand  thus  : 

Lynch.      Chalmers. 

Returned  vote 5,  393            9, 172 

Add  rejected  votes  : 

Warren  County 2, 029  20 

Deadiuau's  Bend 85  15 

Palestine 231  17 

Australia 192  30 

Bolivar 311  45 

Hay's  Landing 39  24 

Ben  Lomonde 332  26 

Duucansby 371  45 

Kodnev 247  92 

Stoueville 315  60 

9. 545  9, 540 

From  which  we  deduct 190 

And  add   that  number  to  Lynch's  vote  to  correct  the  returns  in 

Kingston  precinct,  Adams  County 190 

Which  makes  total 9,735  9,350 

Majority  for  Lynch , 385 

We  have  no't  added  the  vote  of  the  rejected  precincts  in  Coahoma 
County,  as  shown  by  the  clerk's  certificate,  nor  have  we  corrected  the 
vote  in  liobb's  precinct,  in  Washington  County,  where  it  is  charged  the 
ballot-box  was  tampered  with,  and  about  which  there  is  a  conflict  of  testi- 
mony. 

In  three  precincts  in  Adams  County  it  is  claimed  the  returns  should  be 
thrown  out  because  of  mismanagement,  misconduct,  and  abuse  of  power 
on  tVie  part  of  the  managers  in  contestee's  interests,  and  peace  officers 
and  challengers  acting  on  behalf  of  and  in  contestee's  interests.  And 
at  Washington  precinct,  in  Adams  County,  they  excluded  the  United 
States  supervisor  of  elections  from  the  presence  of  the  box  from  the  time 
of  adjournment  in  the  evening  to  the  time  of  commencing  the  counting 
of  the  vote  in  the  morning.  In  precincts  of  Court- House  and  Jefferson 
Hotel  it  is  claimed  that  the  Eepublican  voters  were  prevented  from  vot- 
ing by  a  systematic  course  of  vexatious  questions  and  inexcusable  de- 
lays, whereby  300  or  400  voters  were  prevented  from  voting  at  all.  The 
evidence  on  this  subject  is  conflicting,  and  doubt  exists  in  the  minds  of 
the  committee  whether  it  is  sufficient  to  exclude  these  boxes  from  the 
count,  and  we  therefore  decide  to  let  them  stand.  As  to  Washington 
precinct  it  may  be  gravely  questioned  whether  it  ought  not  to  go  out,  but 
as  it  can  inake  no  difference  in  the  final  result  we  decide  to  let  it  stand, 

If  the  precincts  in  Coahoma  County  shall  be  counted  the  tabulated 
statement  would  be  as  follows  : 

Lynch.       Chalmer  s 

Returned  vote 5,393              9,172 

Add  rejected  votes : 

Warren  County 2, 029  20 

Deaduian's  Bend 85  15 

Palestine 231  17 

Australia 1 . .  192  30 

Bolivar 311  92 

Hay's  Landing 39  24 

Ben  Lomonde 332  l6 

Uuncansby .• 371  45 

Rodney 247  92 

Stoneville 315  60 

9. 545  9, 540 

From  which  we  deduct 190 

And  add  that  nn  ruber  to  Lynch's  vote  to  correct  the  returns  in 

Kingston  precinct,  Adams  County 190 

Whi.di  makes  total .• 9,  735  9, 350 


360  DIGEST  OF  ELECTION  CASES. 

Clarkesdale 307  117 

Sunflower 32  77 

Dublin 70  63 

Magnolia 109  23 

Total 10,253  9,630 

Majority  for  Lynch 623 

If  you  add  the  votes  as  shown  by  the  supervisor's  returns  the  follow- 
ing table  will  exhibit  the  vote : 

Lynch.       Chalmers. 

Returned  vote 5,392              9,172 

Add  rejected  votes : 

Warren  County 2,029  20 

Deadman's  Bend 85  51 

Palestine 231  17 

Australia 192  30 

Bolivar 311  45 

Hay's  Landing 39  24 

Ben  Lomonde 332  20 

Duncansby 371  45 

Rodney 247  92 

Stoneville .    315  (iO 

9, 545  9, 540 

From  which  we  deduct 190 

And  add  that  number  to  Lynch's  vote  to  correct  the  returns  in 
Kingston  precinct,  Adams  County 190 

Which  makes  total 9,  735  9, 350 

Clarkesdale : 307  117 

Sunflower 32  77 

Dublin • 70  63 

Magnolia 109  23 

10,253  9,630 

Glencoe 231  27 

Dumbarton,  or  Duval 47  26 

Jonestown 351  71 

Refuge 99  67 

Lake  Washington.., 112  220 

Total 11,093  10,050 

Majority  for  Lynch 1,043 

These  tabulated  statements  are  made  for  the  information  of  the  House. 
The  first  tabulated  statement  shows  the  result  which  the  undersigned 
members  of  the  committee  all  concur  in,  and  upon  which  the  report  is 
based. 

Your  committee  therefore  recommend  the  adoption  of  the  following 
resolutions : 

Resolved,  That  James  E.  Chalmers  was  not  elected,  and  is  not  entitled 
to  his  seat  in  the  Forty-seventh  Congress  from  the  sixth  district  of  Mis- 
sissippi. 

Resolved,  That  John  E.  Lynch  was  elected,  and  is  entitled  to  his  seat 
in  the  Forty-seventh  Congress  from  the  sixth  district  of  Mississij>pi. 

W.  H.  CALKINS. 

A.  H.  PETTIBONE. 

FEEEIS  JACOBS,  Jb. 

G.  W.  JONES. 

A.  A.  EANNEY. 

S.  H.  MILLEE. 

JNO.  T.  WAIT. 

GEO.  C.  HAZELTON. 

WM.  O.  THOMPSON. 

J.  M.  EITCHIE. 

JOHN  PAUL. 


LYNCH    VS.    CHALMERS.  361 

Mr.  Atheeton,  from  the  Committee  on  Elections,  submitted  the  follow- 
ing as  the 

VIEWS  OF  THE  MINORITY  : 

We  cannot  concur  in  the  views  expressed  by  the  majority  of  the  com- 
mittee in  this  case.  There  are  three  legal  propositions  in  this  case 
necessary  to  sustain  the  report  as  presented  by  the  majority,  either  one 
of  which,  decided  in  the  negative,  will  defeat  the  claim  of  the  con- 
testant. 

1st.  Will  Congress  receive  and  count  votes  of  which  there  is  no  evi- 
dence except  the  certificate  of  a  chancerj'  clerk  as  to  what  purports  to 
be  a  transcript  of  election  returns  of  record  in  his  oflQce,  when  there  is 
no  law  in  Mississippi  authorizing  any  record  to  be  made  of  election  re- 
turns by  any  ofl&cer,  and  when  neither  the  chancery  nor  circuit  clerk,  nor 
any  other  olficer  in  Mississippi,  is  by  law  made  the  custodian  of  the 
election  returns  after  they  have  been  counted  by  the  commissioners  of 
election  ?  * 

2d.  Can  Congress  count  votes  which  were  rejected  by  the  county 
commissioners  because  they  were  not  certified  to  by  the  inspector,  a» 
required  by  law,  when  there  is  no  other  proof  of  their  validity  except 
the  fact  that  the  commissioners  of  election  in  their  statement  of  the  re- 
sult give  the  number  of  ballots  so  rejected  f 

3d.  Will  Congress  refuse  to  follow  the  construction  of  a  State  statute 
of  election  given  by  a  State  court  f 

That  the  essentiality  of  these  points  in  this  case  may  be  clearly  under- 
stood we  jjresent  the  result  reached  by  the  first  tabulated  statement 
made  by  the  majority,  upon  which  alone  they  all  concur,  and  upon  which 
they  say  their  report  is  based  : 

Lynch.         Chalmers^ 

Returned  vote 5,393  9,172 

Add  rejected  votes : 

Warren  County 2,029  20 

Deadnian's  Bend 85  15 

Palestine 231  17 

Australia 192  30 

Bolivar 311  4S 

Hay's  Landing 39  24 

Ben  Lomonde 332  20 

Duncansby 371  4S 

Rodney 247  92 

Stoueville 315  60 

9, 545  9, 540 

From  which  we  deduct 190 

And  add  that  number  to  Lynch's  vote  to  correct  the  returns  in 

Klnston  precinct,  Adams  County 190 

Which  makes  total , 9,735  9,3.jO 

Majority  for  Lynch 3S5 

From  this  statement  it  will  be  seen  that  the  vote  of  Issaquena  County 
at  Hay's  Lauding,  Ben  Lomonde,  and  Duncansby,  amounting  in  the 
aggregate  to  742  votes  for  Lynch  and  89  for  Chalmers,  are  counted  to 
make  a  majority  of  385  claimed  for  Lynch,  and  it  is  clear  that  if  these 
are  not  counted,  there  is  a  majority  of  315  for  Chalmers.  Now,  these 
votes  are  counted  on  the  certificate  of  Kichard  Griggs,  cbaucery  clerk 
of  Issaquena  County,  as  confirmatory  or  auxiliary  evidence.  The  ma- 
jority say : 

There  are  two  statements  in  the  Record  which,  taken  together,  enable 


362  DIGEST  OF  ELECTION  CASES. 

US  with  reasonable  certainty  to  arrive  at  the  vote  cast  in  three  of  the 
four  rejected  precincts  of  this  county.  The  first  is  the  certificates  of 
election  made  by  commissioners  of  election  to  the  secretary  of  state, 
and  found  on  page  17  of  the  flecord. 

hay's  landing. 

They  say  with  regard  to  this  poll,  that  they  find  75  votes  reported  by  the  election 
officers;  on  four  of  the  ballots  all  the  names  are  scratched  off,  and  they  reject  the  poll 
because  there  was  no  separate  list  of  voters  kept.  At  page  89  of  the  Record,  Richard 
Griggs,  clerk  of  the  chancery  court  for  Issaquena  County,  certifies  under  the  seal  of 
«aid  court  that  the  paper  appearing  on  that  page  of  the  record  is  a  true  and  correct 
transcript  of  the  election  returns  made  bj-  the  election  oflicers  as  appears  of  record  in 
his  office,  by  which  it  appears  Lynch  received  34  votes,  and  Mr.  Chalmers  29  votes 
for  member  of  Congress.  The  commissioners  of  election  for  that  county  certify  to 
the  secretary  of  state  that  they  rejected  this  precinct  return,  and  the  clerk  of  the 
<50urt  certifies  that  that  return  is  on  file  in  his  office,  a  copy  of  which  he  gives.  The 
two  statements  taken  together  are  prima  facie  evidence  of  the  vote  received  at  the 
poll.  The  highest  number  of  votes  appearing  on  the  tally-list  as  certified  by  the 
■clerk  agrees  with  the  number  the  commissioners  say  were  returned  from  that  poll. 
The  commissioners  are  authorized  by  law  to  certify  as  a  fact  the  number  of  votes 
■cast,  and  the  clerk  of  the  court  is  authorized  by  law,  as  the  keeper  of  public  records, 
to  give  certified  transcripts  thereof. 

For  the  reasons  given  in  reference  to  Hay's  Landing  precinct,  we  also  count  Ben 
Lomonde  and  Duncansby  precincts,  by  reference  to  which  it  will  be  seen  that  Lynch's 
vote  was  332  and  Chalmer's  20  in  the  Ibrmer  (Record,  pages  17  and  90),  and  371  for 
Lynch,  and  for  Chalmers  45,  in  the  latter. 

Now,  it  is  clear  that  the  certificate  of  the  commissioners  to  the  secre- 
tary of  state  is  not  of  itself  sufficient  to  prove  the  votes  rejected  in  this 
<50unty,  and  the  majority  do  not  so  pretend.  It  is  equally  clear  that 
the  certitiGate  of  the  chancery  clerk  if  it  was  evidence  for  any  purpose 
would  fully  prove  the  vote  by  itself  without  any  aid  from  the  certificate 
of  the  commissioners,  but  the  majority  do  not  claim  this  for  that  certifi- 
■cate.  But  because  the  number  of  votes  stated  by  the  commissioner  to 
have  been  rejected  corresponds  with  the  pretended  certificate  of  the 
<5lerk  we  are  asked  to  receive  this  as  corroborating  evidence.  But  in 
order  to  reach  this  conclusion  the  majoritj"^  say  that  "  the  clerk  of  the 
court  is  authorized  by  law,  as  the  keeper  of  public  records,  to  give  cer- 
tified transcripts  thereof."  That  is  true  when  the  clerk  is  "keeper 
of  the  record,"  but  the  election  returns  form  no  part  of  any  public  rec- 
ords in  Mississippi,  and  therefore  neither  the  chancery  clerk  nor  any 
other  officer  is  the  keeper  of  election  returns  after  they  have  been 
counted,  and  can  give  no  certified  transcripts  thereof. 

That  there  may  be  no  mistake  about  this  we  give  all  the  election  laws 
of  the  Code  of  1880  of  Mississippi  bearing  even  remotely  on  this  ques- 
tion : 

Sec.  105.  The  books  of  registration  of  the  electors  of  the  several  election  districts 
in  each  county  and  the  poll-books  as  heretofore  made  out  shall  be  delivered  by  the 
<50unty  board  of  registration  in  each  county,  if  not  already  done,  to  the  clerk  of  the 
xjircuit  court  of  the  county,  who  shall  carefully  preserve  them  as  records  of  his  office, 
and  the  poll-books  shall  be  delivered  in  time  for  every  election  to  the  commissiouers 
of  election,  and  after  the  election  shall  be  returned  to  .said  clerk. 

Sec.  106.  The  clerk  of  the  circuit  court  of  each  county  shall  register  on  the  regis- 
tration book  of  the  election  district  of  the  residence  of  each  person  any  one  entitled 
to  be  registered  as  an  elector,  upon  his  appearing  before  him  and  taking  and  subscrib- 
ing the  oath  required  by  article  7,  sec.  3,  of  the  constitution,  &c. 

Sec.  107.  When  an  elector  duly  registered  shall  change  his  residence  to  another 
election  district  in  the  same  c»unty  he  may  be  registered  in  the  election  district  to 
which  he  has  removed  by  appeariu*  before  the  circuit  clerk  and  requesting  him  to 
erase  his  name  from  the  register  of  election  in  the  district  of  his  former  residence 
and  to  place  it  on  that  of  his  present  residence,  which  said  clerk  shall  do. 

Sec.  108  provides  no  person  convicted  of  felony  shall  be  registered 


LYNCH    VS.    CHALMERS.  363 

or  if  convicted  after  registration  the  circnit  court  shall  erase  his  name 
from  the  refjistration  book. 

Sec.  116  fixes  the  pay  of  the  circuit  court  clerk  for  acting  as  regis- 
trar. 

Sec.  126.  The  conmiissioaersofelectiou  in  each  county  shall  ijrocure,  if  not  already 
provided,  at  the  expense  of  the  county,  which  shall  be  paid  by  order  of  the  board  of 
supervisors,  a  sufficient  number  of  ballot  boxes,  nhich  shall  be  distributed  by  them 
to  each  election  precinct  of  the  county  before  the  time  for  opening  the  polls,  which 
boxes  shall  be  secured  by  good  and  substantial  locks ;  and  if  an  adjournment  shall 
take  place  after  opening  the  polls  and  before  all  the  votes  shall  be  counted,  the  box 
shall  be  secnrelj'  closed  and  locked,  so  as  to  prevent  the  admission  of  anything  into 
it  during  the  time  of  adjournment,  and  the  box  shall  be  kept  by  one  of  the  inspect- 
ors and  the  key  by  another  of  the  inspectors,  and  the  inspector  having  the  box  shall 
carefully  keep  it  and  neither  unlock  nor  open  it  himself,  nor  permit  it  to  be  done,  or 
permit  any  person  to  have  any  access  to  it  during  the  time  of  such  adjoui'nmeut. 

Sec.  137.  All  ballots  shall  be  written  or  printed  in  l^lack  ink,  with  a  space  not  less 
than  one-fifth  of  an  inch  between  each  name,  on  plain  white  printing  newspaper,  not 
more  than  two  and  one-half  nor  less  than  two  and  one-fourth  inches  wide,  without 
any  device  or  mark  by  which  one  ticket  may  be  known  or  distinguished  from  another, 
except  the  words  at  the  head  of  the  ticket ;  but  this  shall  not  prohibit  the  erasure, 
correction,  or  insertion  of  any  name  by  pencil  mai;}<L  or  ink  upon  the  face  of  the  bal- 
lot ;  and  a  ticket  different  from  that  herein  prescribed  shall  not  be  received  or  counted. 

Sec.  138.  When  the  results  shall  have  been  ascertained  by  the  inspectors,  they,  or 
one  of  them,  or  some  tit  person  designated  by  them,  shall,  by  twelve  o'clock  noon  of 
the  second  day  after  the  election,  deliver  to  the  commissioners  of  election,  at  the 
court-house  of  the  county,  a  statement  of  the  whole  number  of  votes  given  for  each 
person  and  for  what  office  ;  and  the  said  commissioners  of  election  shall  canvass  the 
returns  so  made  to  them,  and  shall  ascertain  and  disclose  theresults,  and  shall,  within 
ten  days  after  the  day  of  said  election,  deliver  a  certificate  of  his  election  to  the  per- 
son having  the  greatest  number  of  votes  for  any  office,  &c. 

Sec  139.  The  statement  of  the  result  of  the  election  at  their  precincts  shall  be  cer- 
tified and  signed  by  the  inspectors  and  clerks,  aiid  the  poll-book,  tally-list,  list  of 
voters,  ballot-boxes,  and  ballots  shall  be  delivered  as  above  required  to  the  commis- 
sioners of  election. 

Sec.  140.  The  commissioners  of  election  shall,  within  ten  days  after  the  election, 
transmit  to  the  secretary  of  state,  to  be  filed  i^&his  office,  a  statement  of  the  whole 
number  of  votes  given  in  their  county  for  each  candidate  voted  for  for  any  office  at 
such  election,  «fec. 

From  this  it  will  be  seen  that  neither  the  circuit  clerk  nor  chancery 
clerk  is  the  keeper  of  any  public  record  which  contains  election  returns, 
and  that  the  certificate  of  Griggs  in  this  case  is  a  nullity.  The  law  on 
that  subject  is  as  follows : 

The  law  is  well  settled  that  statute-certifjnng  officers  can  only  make  their  certifi- 
cates evidence  of  the  facts  of  which  the  statute  requires  them  to  certify,  and  when 
they  undertake  to  go  beyond  this  and  certify  other  facts  they  are  unofficial  and  no 
more  evidence  than  the  statement  of  an  unofficial  person.  {Swetzler  vs.  Anderson,  2 
Bartlett,  374. )  This  rule  of  course  applies  to  election  returns  and  to  all  certificates 
which  are  by  law  required  to  be  made  by  officers  of  election,  or  of  registration,  or  by 
returning  officers.  They  can  only  certify  to  such  facta  as  the  law  requires  them  to  certify. 
(Am.  Law  of  Elections,  sec.  104.) 

In  the  United  States  district  court,  in  the  case  of  the  United  States  va. 
Souderj  it  was  held :  • 

In  New  Jersey  a  copy  of  the  return  of  the  township  election  filed  with  the  clerk  of 
the  county  and  sent  to  the  office  of  the  secretary  of  state,  accompanied  by  the  clerk's 
certificate  that  it  is  a  full  and  perfect  return  of  said  election  as  filed  in  his  office,  is  not 
so  made  and  certified  and  does  not  come  from  such  a  source  as  to  constitute  it  an 
official  paper.     (2  Abbott  C.  C.Rep.,  456;)  1  Greenleaf, sec.  498,  "Certificates." 

In  regard  to  certificates  given  by  persons  in  official  station,  the  general 
rule^is  that  the  law  never  allows  a  certificate  of  a  mere  matter  of  fact, 
not  coupled  with  any  matter  of  law,  to  be  admitted  as  evidence.  ( Willes, 
549,  550,  per  WillesJ  Ld.  Ch.  Justice.) 

If  the  ])erson  was  bound  to  record  the  fact,  then  the  proper  evidence 
is  a  copy  of  the  record  duly  authenticated. 


364  DIGEST    OF    ELECTION   CASES. 

Bat  as  to  matters  which  he  was  not  bound  to  record,  his  certificate, 
being  extra  official,  is  merely  the  statement  of  a  private  person,  and 
will  therefore  be  rejected.  {Oaken  vs.  Hill,  14  Pick.,  442,  448  ;  Wolfe  vs. 
Wanhburn,  6  Cowen,  2GI ;  Jaclsonvs.  Miller,  6  Cowen,  751 ;  Governor  vs. 
McAfee,  2  Dev.,  15, 18;  United  States  vs.  Buford,  3  Peters,  12,  29;  Gkil- 
ders  vs.  Cutter,  16  Miss.,  24.) 

Eejecting,  therefore,  the  vote  added  by  the  majority  report  in  Issa- 
quena County,  on  the  certificate  of  Griggs,  the  chancery  clerk,  and  tak- 
ing the  other  returns  as  made  out  by  the  majority,  the  result  is  as  fol- 
lows: 

Lynch.       Chalmers. 

Returned  vote 5,393  9,172 

Add  rejected  votes : 

Warreii  Conuty 2,029  20 

Deadman's  Bend 85  15 

Palestine 231  17 

Australia - 192  30 

Bolivar 311  92 

Eodnev 247  92 

Stoneville 315  60 

8,803  9,498 

Add  190  to  Lynch  and  tate  same  from  Chalmers  at  Kingston 190  190 

8, 993  9, 308 

8, 993 

Leaving  majority  for  Chalmers  of 315 

BOLIVAR  COUNTY. 

But  to  accomplish  even  this  reduction  of  the  proper  majority  of  Chal- 
mers the  votes  claimed  by  contestant  in  Bolivar  County  at  Australia 
and  Bolivar  precinct'  are  coiMted.  The  returns  from  these  precincts 
were  rejected  by  the  commissioners  of  election  because  they  were  not 
certified  to.  In  other  words,  the  commissioners  had  no  legal  evidence 
that  the  ballots  returned  in  these  boxes  were  ever  cast  by  voters.  They 
might  have  been  stuffed  in  by  any  one  on  the  road  from  the  precinct  to 
the  court-house. 

That  returns  not  certified  to  can  never  be  counted  is  stated  to  be  law 
by  every  writer  on  election  cases.    The  certificate  is  essential. 

The  rule  of  law  on  that  subject  has  been  thus  stated  in  the  American 
Laws  of  Elections  by  Hon,  George  W.  McCrary: 

Sec.  174.  It  is  the  duty  of  the  party  seeking  to  avail  himself  of  a  vote  nvhich  is  not 
legally  certified  and  returned  to  make  the  necessary  proof  to  supply  the  place  of 
the  usual  formal  certificate,  and  if  he  fails  to  do  so  such  vote  cannot  of  course  he  re- 
ceived. 

Sec.  363.  The  general  rule  is  that  when  the  return  is  set  aside  hoth  parties  must 
pfove  their  votes  bj'  other  evidence. 

Sec.  365.  It  is  impossible  to  state  more  defiuitelj'  than  we  have  done  the  general 
rule  which  should  govern  in  detenniniug  whether  a  return  should  be  set  aside,  aud 
the  parties  on  either  side  required  to  prove  their  actual  vote  by  other  evidence. 

Sec.  391.  It  is  very  clear  that  if  the  returns  are  set  aside  no  votes  not  otherwise 
proven  can  he  counted. 

The  majority  of  the  committee  do  not  deny  this  principle  of  law,  but 
they  contend  that  the  votes,  though  rejected  for  a  lawful  reason  by  the 
commissioners,  must  now  be  counted,  because  the  commissioners  inlheir 
certificate  to  the  secretary  of  state  show  how  many  votes  were  rejected. 
They  say : 


LYNCH    VS.    CHALMERS.  365 

BOLIVAR   COUNTY. 

Under  secfioa  138  of  the  Mississippi  code  the  inspectors  of  elections  are  required  to 
send  up  to  the  commissioners  the  whole  number  of  votes  cast  at  the  poll,  and  the  com- 
missioners, under  section  140  of  the  code,  are  required  to  "transmit  to  the  secretary 
of  state,  to  be  filed  in  his  office,  a  statement  of  the  whole  number  of  votes  given  in 
their  county  for  each  candidate." 

This  duty  being  enjoined  by  statute,  their  certificate  is  evidence  of  the  fact  that  the 
number  of  votes  which  they  certify  were  given. 

The  majority  are  mistakeu  in  this  statement  of  the  diitj'^  of  the  ia- 
spectors  under  the  law  of  Mississippi.  Their  duty  under  section  138  is 
not  "  to  send  up  to  the  commissioners  the  whole  number  of  rotes  cast," 
but  "a  statement  of  the  whole  number  of  votes,"  &c.;  and  by  section  139 
it  is  required  that  the  statement  shall  be  certified  as  correct  by  both  the 
inspectors  and  their  clerks.     (See  sections  138.and  139,  above  set  out.) 

Now,  it  is  clear  that  the  certificate  is  essential  to  identify  and  make 
certain  the  return,  and  that  without  the  certificate  it  is  no  legal  return 
and  cannot  be  counted  or  considered  as  evidence  in  any  way. 

Without  the  certificate  the  commissioners^  who  know  nothing  of  their 
own  knowledge  as  to  the  election,  can  certainly  make  no  statement  of 
the  votes  that  would  import  verity  as  to  the  result.  They  are  required 
to  report  to  the  secretary  of  state  as  follows  : 

Sec.  140.  The  commissioners  of  election  shall,  within  ten  days  after  the  election, 
transmit  to  the  secretary  of  state,  to  be  filed  in  his  office,  a  statement  of  the  whole 
number  of  votes  given  in  their  county  for  each  candidate  voted  for  for  any  office  at 
such  election,  &c. 

If  these  commissioners  had  undertaken  to  count  and  to  transmit  to 
the  secretary  of  state  a  statement  of  votes  not  certified  by  the  inspect- 
ors to  them,  this  would  have  been  clearly  illegal,  and  yet  when  the 
commissioners  of  Bolivar  County  refused  to  receive  and  count  returns 
not  certified  to  them,  and  in  the  appendix  to  their  statement  to  the  sec- 
retary of  state  stated  that  they  had  rejected  these  votes  because  not 
certified.  Congress  is  asked  to  count  them  without  any  other  proof  that 
they  are  good  and  valid  votes  except  the  appended  statement  of  the 
commissioners  as  to  the  number  of  votes  rejected  and  for  whom  they 
purported  to  be  cast. 

The  commissioners  conceived  it  to  be  their  duty  in  giving  a  statement 
of  the  whole  number  of  votes  to  give  what  they  deemed  legal  and  what 
illegal  returns,  and  because  they  did  this  the  majority  of  the  committee 
Bay— 

This  duty  being  enjoined  by  statute,  their  certificate  is  evidence  of  the  fact  that  the 
number  of  votes  which  they  certify  were  given. 

We  give  the  report  of  the  commissioners  in  full  as  follows  : 

Statement  of  the  whole  numier  of  rotca  cast  at  the  general  election  held  in  Bolivar  County, 
State  of  Mississippi,  on  the  '2d  day  of  November,  A.  D.  1880,  as  compiled  from  atatementt 
certified  to  by  inspectors  from  the  different  precincts  in  this  county,  this  4th  day  of  November, 
A.  D.  1880. 

FOR  PRESIDENTIAL  ELECTORS. 

(Names  voted  for.) 
Por  Hancock  and  English  : 

1.  F.  G.  Barrv 259 

2.  C.  P.  Neilsou 259 

3.  C.  B.  MitcheU 259 

4.  Thos.  Spight 259 

5.  Wm.  Price 259 

6.  William  H.  Luse 259 

7.  Robt.  N.  Miller 259 

a.  Joseph  Hirsh 859 


366  DIGEST    OF    ELECTION    CASES. 

For  Garfield  and  Arthur: 

1.  William  B.  Spears 1,016 

2.  R.W.Flournov 1,016 

3.  J.  M.  Bynum..' 1,016 

4.  J.  T.  Settle 1,016 

5.  M,  K.  Mister 1,016 

6.  R.  H.  Montgomery 1,016 

7.  R.  H.  Cuny 1,016 

8.  Chas.  W.  Clark 1,016 

For  Weaver  and  Chambers : 

1.  R.H.  Peelo 24 

2.  M.  M.  McLeod 24 

3.  J.  J.  Dennis ^ 24 

4.  S.  L.  Harmon 24 

5.  T.  N.  Davis 24 

6.  H.  B.McGee 24 

7.  John  T.Hull 24 

8.  J.  D.Webster 24 

For  member  of  Congress  from  sixth  Congressional  district : 

James  R.  Chalmers 301 

John  R.  Lynch 979 

We,  the  undersigned,  commissioners  of  election  for  the  county  of  Bolivar  and  State 
of  Mississippi,  do  hereby  certify  that  tbe  above  is  correct. 
Rosedale,  Bolivar  County,  Miss., November  4,  1880. 

JNO.    H.    JARNAGIN, 
RILEY  ROLLINS, 
W.  A.  YERGER, 
•  Commiasionera  of  Election. 

To  Hon.  H.  C.  Myers, 

Secretary  of  State,  Jackson,  Miss. 

The  following  statement  accompanied  the  foregoing  returns  : 

RosKDALE,  Bolivar  Co.,  Miss., 

November  4,  1880. 
To  Hon.  Henry  C.  Myers, 

Secretary  of  State,  Jackson,  Miss.  : 
Dear  Sir  :  We  have  this  day  duly  met  and  canvassed  the  returns  of  this  county, 
and  complied  with  the  law  in  every  respect,  as  we  construed  the  same  after  duly  con- 
sulting the  best  legal  authority  in  the  county,  and  we  now  inclose  to  you  our  certified 
report  of  the  same.  We  have  thrown  out  the  Australia  precinct  box,  30  Democratic 
and  192  Republican  votes,  because  the  returns  were  not  certified  to  by  the  inspectors 
or  the  clerks.  We  have  thrown  out  Holmes  Lake  precinct,  because  the  box  was  not 
opened  nor  the  ballots  counted  by  the  inspectors  and  numbered  by  the  clerks,  and  no 
returns  nor  tally-sheet  made.  We  have  thrown  out  the  Bolivar  precinct,  45  Demo- 
cratic and  311  Republican  votes,  because  there  was  no  certified  return  from  the  in- 
spectors and  clerks.  The  tally-sheets  sent  in  the  box  show  the  names  of  the  electors 
of  the  Democratic  and  Republican  parties,  of  James  R.  Chalmers,  John  R.  Lynch, 
G.  B.  Lancaster,  M.  Roland,  James  Winters,  Fleming,  and  James  White,  but  does  not 
show  for  what  office  they  were  voted  for.  The  tally  is  kept  on  four  difi'erent  sheets 
of  paper.  The  total  can  only  be  guessed  at,  and  not  "ascertained  correctly.  We  have 
rejected  the  Glencoe  precinct  vote — 27  Democratic,  233  Republican  votes — because  the 
vote  was  counted  out  in  part  by  all  the  inspectors  and  clerks,  and  then  discontinued 
until  next  day,  when  the  count  was  finished  by  one  inspector  and  one  clerk,  and  a 
very  imperfect  tally-sheet  and  return  sent  in  by  those  two  not  certified  to. 

JNO.  H.  JARNAGIN, 
RILEY  ROLLINS, 
W.  A.  YERGER, 
Commissioners  of  Election. 

If  the  majority  are  right  as  to  the  effect  of  the  commissioners'  certifi- 
cate, it  will  be  seen  thatthe  certificate  coversonly  the  votes  they  counted, 
and  the  appended  statement,  which  was  no  part  of  the  certificate,  gives 
the  rejected  votes  and  the  cause  of  their  rejection. 

We  claim,  therefore,  that  Australia  and  Bolivar  precincts  should  be 
rejected,  and  the  result,  then,  allowing  votes  claimed  by  the  majority, 
and  not  so  far  expected  by  us,  would  stand  as  follows : 


LYNCH    VS.    CHALMERS  367 

Lynch.       Chalmers^ 

Returned  vote 5,393  9,172 

Add  rejected  votes : 

Warreu  County 2,029  20 

Deadraau's  Bend 85  15 

Palestine 231  17 

Rodney 247  92 

Stoneville 315  60 

8, 300  9, 37t> 

From  which  we  deduct 190 

And  add  that  number  to  Lynch's  vote  to  correct  the  returns  in  King- 
ston precinct,  Adams  County ^..       190 

8, 490  9, 18& 

8,490 

Leaving  majority  for  Chalmers 696 

COAHOMA  COUNTY. 

The  votes  claimed  by  contestant  in  Coahoma  County  are  not  counted 
by  the  majority,  but  they  are  put  into  a  tabulated  statement,  it  is  said, 
for  the  information  of  Congress.  For  the  same  information  we  state 
that  the  vote  claimed  depends  for  proof  entirely  upon  United  State* 
supervisor's  certificate  and  the  certificate  of  the  circuit  clerk  that  certain 
election  returns  were  on  file  in  the  hallot-boxes  in  his  office.  This  was  a 
more  farcical  certificate  than  that  of  Griggs  in  Issaquena  County,  and 
the  majority,  who  could  not  agree  that  supervisors'  certificates  were  evi- 
dence, did  not  count  this  vote  as  claimed  by  contestant. 

UNITED  STATES  SUPERVISORS. 

The  majority  of  the  committee  have  not  claimed  that  the  certificates 
made  by  United  States  supervisors  of  election  in  districts  outside  of 
cities  of  20,000  are  evidence,  but  as  they  have  submitted  that  question 
to  the  House  we  hold  that  these  supervisors  are  mere  witnesses,  whose 
testimony  must  be  obtained,  like  any  other  witnesses,  by  depositions 
properly  taken. 

The  history  of  the  passage  of  the  act  of  1872,  the  declarations  of  Mr. 
Garfield,  who  reported  the  bill,  and  others  who  took  part  in  tlie  debate,, 
and  the  very  language  of  sections  2018  and  2029  show  that  supervisors 
in  Congressional  districts  outside  of  cities  of  20,000  inhabitants  are 
mere  witnesses,  and  have  no  power  to  make  certificates. 

We  quote  from  the  brief  of  contestant. 

Now,  in  the  light  of  this  history,  when  county  supervisors  were  cre- 
ated, what  was  meant  by  the  words  of  limitation  used,  and  now  found 
in  section  2029,  Revised  Statutes,  as  follows : 

The  supervisors  of  election  appointed  for  any  county  or  parish,  or  any  Conces- 
sional district,  at  the  instance  of  ten  citizens,  as  provided  in  section  2011,  shall  have 
no  authority  to  make  arrests  or  to  perform  other  duties  than  to  be  in  the  immediate 
presence  of  the  officers  holding  the  election,  and  to  witness  all  their  proceedings,  in- 
cluding the  counting  of  the  votes  and  the  making  of  a  retuj-n  thereof. 

Contestant's  brief  argues  that  it  was  only  intended  to  prevent  the 
county  supervisors  from  making  arrests.  If  this  be  true,  then  the  words 
"  or  to  perform  other  duties  than  to  be  in  the  immediate  presence  of  the 
officers  holding  the  election,  and  to  witness  all  their  proceedings,  in- 
cluding the  counting  of  the  votes  and  the  making  of  a  return  thereof,'' 
have  no  meaning  whatever. 


368  DIGEST  OF  ELECTION  CASES. 

It  is  claimed  in  contestant's  brief  that  section  2018  gives  all  super- 
visors the  power  to  make  returns  and  certificates. 
Let  us  look  at  the  language. 
Section  2018  of  the  Revised  Statutes  is  as  follows  : 

To  the  end  that  each  candidate  for  the  office  of  Representative  or  Delegate  in  Con- 
gress may  obtain  the  benefit  of  every  vote  for  him  cast,  the  supervisors  of  e[ection 
a.re  and  each  of  them  is  required  to  personally  scrutinize,  count,  and  canvass  each 
ballot  in  their  election  district  or  voting  precinct  cast,  whatever  may  be  the  indorse- 
ment on  the  ballot,  or  in  whatever  box  it  may  have  been  placed  or  be  found  ;  to 
make  and  forward  to  the  officer  who,  in  accordance  with  the  provisions  of  section 
2025,  has  been  designated  as  the  chief  supervisor  of  the  judicial  district  in  which  the 
•city  or  town  wherein  they  may  serve  acts,  such  certificates  and  returns  of  all  such 
ballots  as  such  officer  may  direct  and  require,  and  to  attach  to  the  registry  list,  and 
any  and  all  copies  thereof,  and  to  any  certificate,  statement,  or  return,  whether  the 
«ame,  or  any  part  or  portion  thereof,  be  required  by  any  law  of  the  United  States,  or 
of  any  State,  Territorial,  or  municipal  law,  any  statement  touching  the  truth  or  accu- 
racy of  the  registry,  or  the  truth  or  fairness  of  the  election  and  canvass,  which  the 
supervisors  of  the  election,  or  either  of  thera,  may  desire  to  make  or  attach,  or  which 
should  properly  and  honestly  be  made  or  attached,  in  order  that  the  facts  may  become 
known. 

We  have  asserted  that  the  words  "  city  or  town  wherein  they  may 
serve,"  found  in  the  eleventh  line  of  this  section,  shows  clearly  that  it 
could  not  apply  to  county  supervisors,  even  if  this  chapter,  as  it  ap- 
pears in  the  Revised  Statutes,  had  been  passed  as  a  whole,  though  it 
was  not.  But  contestant's  brief  claims  that  "  the  allusion  in  section 
2018  to  the  words  '  city  or  town,'  wherein  the  supervisor  may  serve,  is 
a  clause  merely  descriptive  of  the  oflScer  to  whom  returns  are  to  be  made, 
to  wit,  the  chief  supervisor." 

A  glance  at  the  section  will  show  this  is  not  true.  The  language  is 
*'  the  city  or  town  wherein  they  may  serve,"  not  he  may  serve,  and  is 
descriptive  of  the  supervisors  who  are  to  act  in  the  city  or  town,  and 
is  not  descriptive  of  the  chief  supervisor.  If  so,  it  would  have  said  "  in 
the  city  or  town  where  he  may  serve."  Again,  contestant  claims  that 
section  2018  of  Revised  Statutes  is  directed  to  supervisors  generally,  and 
embraces  all  persons  "  sworn  as  supervisors." 

If  section  2018  covers  the  supervisors  in  county  districts,  and  author- 
izes them  to  make  reports,  then  every  other  power  or  duty  conferred 
on  supervisors  by  this  section  must  also  be  conferred  on  them.  Section 
2018  requires  supervisors  "to  personally  scrutinize,  count,  and  can- 
vass," "  to  make  and  forward  *  *  *  such  certificates  and  returns 
of  all  such  ballots,"  "  and  to  attach  to  the  registry  list,  and  any  and  all 
copies  thereof,  and  to  any  certificate,  statement,"  &c.,  by  whomsoever 
made,  "any  statements  as  to  the  truth  or  accuracy  of  the  registry,  or 
the  truth  or  fairness  of  the  election  and  canvass,"  &c.,  which  they  may 
desire  to  make ;  and  any  one  can  see  at  a  glance  that  this  is  utterly  in- 
comj)atible  with  section  2029. 

It  would  be  absurd  to  provide  in  section  2029  that  they  should  only 
be  present  and  witness  the  count  made  by  others,  if  by  section  2018 
they  were  required  to  count  themselves.  Again,  if  by  section  2018  they 
are  required  to  make  return  it  is  worse  than  ridiculous  to  say  in  section 
2029  they  should  only  witness  the  returns  made  by  others. 

if,  therefore,  we  refuse  to  receive  the  certificate  of  the  United  States 
supervisors  of  election  on  the  certificates  of  clerks  who  were  not  custo- 
dians of  election  returns  and  coidd  make  no  certificate  about  them,  the 
contestee  is  entitled  to  retain  his  seat  by  315  majority. 

And  unless  we  torture  the  statement  of  rejected  votes  into  a  certifi- 
cate of  their  validity  the  contestee  must  hold  his  seat  by  696  majority. 
This  would  be  suflBcient  to  settle  this  case,  but  as  the  majority  of  the 


LYNCH    VS.    CHALMERS.  869 

committee  have  made  what  we  regard  as  a  fatal  and  hurtful  mistake  in 
refusing  to  follow  the  supreme  court  of  Mississippi  in  construing  its 
own  election  statute  we  proceed  to  discuss  that  question. 

If  that  be  decided  as  it  has  heretofore  been  it  would,  as  the  majority  • 
of  the  committee  admit,  end  this  contest  at  once  and  leave  the  sitting 
member  in  undisputed  possession  of  his  seat. 

OBITER  DICTUM. 

» 

But  before  proceeding  to  the  consideration  of  that  question  we  wish 
to  dispose  of  two  points  of  objection  made  by  the  majority  report  to  the 
case  of  Oglesby  vs.  Sigman,  58  Miss.  R.  They  are,  first,  that  the  de- 
cision is  a  mere  obiter  dictum ;  and  the  second,  that  it  is  confessedly 
without  jurisdiction.  An  obiter  dictum  is  an  expression  of  opinion  by 
way  of  argument  or  illustration,  and  rendered  without  due  considera- 
tion as  to  its  full  bearing  and  effect.  To  show  the  want  of  authority  of 
an  obiter  dictum  the  majority  quote  from  Carroll  vs.  Carroll,  16  How. 
286-7. 

The  court  say:  "If  the  construction  put  By  the  court  of  a  State  upon 
one  of  its  statutes  was  not  a  matter  in  judgment,  if  it  might  have  been 
decided  either  way  without  affecting  any  right  brought  into  question, 
then,  according  to  the  common  law,  an  opinion  on  such  a  question  is  not 
a  decision.  To  make  it  so  there  must  have  been  an  application  of  the 
judicial  mind  to  the  precise  question  to  be  determined  to  fix  the  rights 
of  the  parties  and  decide  to  whom  the  property  belongs."  There  can 
be  no  doubt  about  tlie  judicial  mind  being  directed  to  the  construction 
of  the  Mississippi  election  laws.  The  court  say  they  considered  them, 
and  that  they  were  asked  to  consider  them.  This  decision  is,  therefore, 
not  obiter  as  to  the  marked  ballots,  because  it  is -one  of  the  very  points 
carefully  considered  and  directly  decided. 

An  obiter  dictum  is  exactly  what  its  term  imports — a  saying  of  the 
judge  outside  of  and  beyond  the  i>oint  decided.  Therefore  it  cannot  be 
said  that  the  decision  of  one  of  the  very  questions  submitted,  and  to 
which  the  judicial  mind  was  especially  directed,  is  obiter.  But  if  we 
should  admit  that  the  case  of  Oglesby  vs.  Sigman  was  obiter  we  have 
still  another  decision  from  the  same  court  on  the  same  subject  and  of 
the  same  import.  This  case  cannot  be  called  ^a  partisan  decision,  be- 
cause a  Democratic  court  gave  the  oflQce  to  a  Republican  contestant. 
The  opinion  in  Perkins  vs.  Carraway  says : 

Certain  ballots  were  rejected  from  the  count  because  the  names  of  persona  voted 
for  for  representatives  in  the  legislature  were  found  to  be  less  than  one-fifth  of  an 
inch  apart,  and,  urged  by  counsel,  we  pass  upon  that  question  also.  Section  137  of 
the  Code  prescribes  the  kind  of  tickets  to  be  used,  and,  among  other  things,  directs 
that  there  shall  be  a  space  of  not  less  than  one-fifth  of  an  inch  between  the  names  of 
persons  voted  for;  and  declares  that  "a  ticket  different  from  that  herein  prescribed 
shall  not  be  received  or  counted. "  The  language  is  unmistakable  and  imperative. 
The  proceding  section  indicates  plainly  the  meaning  of  the  word  "  ticket."  It  is  a 
"  scroll  of  paper,  on  which  shall  be  written  or  printed  the  names  of  the  persons  for 
whom  he  intends  to  vote."  Ballot  is  sometimes  used  by  the  statute  to  signify  ticket, 
but  the  latter  is  never  used  as  synonymous  with  the  former.  The  "  ticket "  describes 
the  paper,  and  names  of  persons,  and  the  oiBces  for  which  they  are  voted  for.  It  in- 
cludes all.  The  statute  says:  "A  ticket  different  from  that  herein  prescribed  shall 
not  be  received  or  counted."  This  applies  to  the  entire  "  scroll  of  paper,"  and  excludes 
it  as  a  whole.  The  language  cannot  be  satisfied  by  limiting  the  exclusion  from  the 
count  to  the  ballot  for  the  office  in  which  the  vice  exists,  and  we  must  give  effect  to 
the  language  of  the  law.     It  excludes  the  ticket. 

Judgment  affirmed. 

This  is  but  a  repetition  of  the  doctrine  laid  down  in  Oglesby  vs.  Sig  - 
H.  Mis.  35 24 


370  DIGEST    OF   ELECTION   CASES. 

man,  that  section  137  must  be  strictly  construed.  Here,  then,  is  a  line  of 
decisions  carefully  considered,  and  while  it  may  be  true  that  they  construe 
their  statute  more  strictly  than  some  decisions  in  other  States,  we  must 
permit  the  supreme  court  of  Mississippi  to  construe  its  own  statutes  or 
abandon  the  rule  heretofore  held  to  be  essential  to  the  preservation  of 
our  complex  system  of  government. 

The  majority  of  this  committee  refused  to  follow  the  supreme  court  of 
Mississippi  clearly  announced  in  two  opinions,  and  ask  Conj^ress  to  re- 
gard section  137  as  directory  and  not  mandatory,  because  the  supreme 
court  of  California  has  construed  its  similar  statute  to  be  partly  direct- 
ory and  partly  mandatory.  The  argument  that  a  strict  enforcement  of 
this  law  is  impossible  is  contradicted  by  the  facts.  In  five  districts  of 
the  State  the  law  was  strictly  complied  with  in  1880.  Another  election 
was  held  in  1881,  and  no  marked  ballots  were  used  in  the  State. 

The  argument  that  marks  are  essential  to  enable  ignorant  men  to  dis- 
tinguish their  ballots  is  an  argument  against  the  law  and  not  the  decis- 
ion. The  same  argument  would  compel  raised  tickets  to  be  furnished 
for  the  use  of  blind  men.  The  majority  report  criticises  the  object  of  the 
law  given  by  the  court  as  follows  : 

The  object  is  to  secure  absolute  uniformity  as  to  the  appearance  of  ballots,  in  order 
that  intelligence  may  guide  the  electors  in  their  selection,  and  not  a  mere  device  or 
mark  by  which  ignorance  may  be  captivated. 

They  maintain  that  this  is  prescribing  an  educational  qualification  for 
voting  in  violation  of  the  Mississippi  constitution.  This  is  a  clear  mis- 
apprehension of  the  meaning  of  the  court.  When  marks  are  relied  on 
to  distinguish  ballots,  ignorant  men  can  be,  and  usually  are,  deceived 
by  shrewd  political  opponents.  The  prohibition  of  marks  protects  the 
ignorant  against  such  deception.  Without  marks  the  ignorant  voter 
will  not  rely  on  himself,  but  trust  to  the  intelligence  of  his  friends  to  dis- 
tinguish his  ticket.  Suppression  of  marks  was  also  essential  to  preserve^ 
the  secrecy  of  the  ballot,  and  yet  the  contestant  admitted  that  the  col- 
ored men  were  ordered  or  directed  to  vote  an  open  ticket.  This  was  in 
violation  of  the  law  of  Congress  which  requires  voting  by  ballot.  This, 
was  equivalent  to  viva  voce  voting,  and  subjected  to  odium  all  colored 
men  who  refused  to  vote  an  open  ticket.  This  the  contestant  said  was 
the  mark  he  adopted,  and  it  was  clearly  a  device  by  which  one  ticket 
might  be  distinguished  from  another. 

HAD  THE  COUET  JTJEISDICTION  1 

But  the  majority  say — 

First.  The  court  declared  in  terms  it  had  no  jurisdiction  of  the  subject-matter  em- 
braced in  the  first  and  second  grounds  stated  in  the  opinion ;  but  the  court,  after 
remarking  upon  its  want  of  jurisdiction  on  the  first  two  points  stated  in  the  l>egin- 
niug  of  its  opinion,  and  having  disposed  of  the  third  on  the  ground  that  the  official 
duties  of  the  election  officers  were  at  an  end  and  that  they  could  not  be  reassembled,, 
proceeded  to  construe  the  law  relative  to  distinguishing  marks,  and  decide  what  wer& 
such  by  the  terms  of  the  Mississippi  Code  so  far  as  it  could  do  so,  the  same  being  con- 
fessedly not  before  them . 

This  is  neither  legally  nor  historically  true  of  this  decision.  The 
court  did  not  anywhere  admit  its  want  of  jurisdiction,  nor  did  it,  after 
admitting  that  a  decision  of  one  point  in  the  case  might  have  been 
sufficient  to  decide  the  whole  case,  proceed  to  decide  the  other  two 
points  first  stated.  Historically,  it  decided  first  the  two  first  points, 
and  then  the  third.  It  is  a  general  rule  that  where  a  court  has  decided 
one  point  which  is  decisive  of  a  case  it  will  not  decide  others,  but  this 
rule  is  by  no  means  universal.     (See  Eam  on  Legal  Judgments,  258-9^ 


LYNCH    VS.    CHALMERS.  371 

and  the  cases  there  cited.)  But  it  is  an  unheard-of  proposition  to  say 
where  there  are  several  distinct  and  vital  points  in  a  case,  and  the  court 
decides  them  all,  the  opinion  is  not  authority  except  on  one  point,  if 
that  would  have  been  decisive  of  the  case. 

Thousands  of  cases  can  be  found  where  all  the  points  presented  are 
decided,  though  the  decision  of  one  might  have  been  sufficient.  The 
most  notable  instance  is  the  case  of  ex  parte  Siebold  (10  Otto).  In  that 
case  it  was  only  necessary  to  decide  that  sec.  5515  of  the  Revised  Stat- 
utes United  States  was  constitutional,  and  that  would  have  settled  the 
whole  case;  but  the  court  proceeded  to  settle  all  the  questions  that  had 
arisen,  or  perhaps  could  arise,  under  the  United  States  elections  laws, 
including  the  power  of  United  States  marshals  to  keep  the  peace  at  the 
polls  and  the  power  of  United  States  judges  to  appoint  supervisors  of 
election. 

We  presume  no  one  will  say  that  opinion  was  either  obiter  or  without 
jurisdiction  on  any  point  decided.  How,  then,  can  it  be  said  that  the 
supreme  court  of  Mississippi  was  without  jurisdiction  to  pass  upon  ques- 
tions which  it  assumed  to  pass  upon  ?  Want  of  jurisdiction  might 
result,  first,  from  general  lack  of  power  to  adjudicate  any  question,  as 
where  the  pretended  judges  have  never  been  elected  or  qualified ;  sec- 
ond, where  the  court  has  acquired  no  jurisdiction  of  the  persons  of  the 
parties;  third,  where  it  has  no  jurisdiction  of  the  subject-matter  of  the 
action.  It  is  not  claimed  that  the  supreme  court  of  Mississippi  was 
not  a  properly  constituted  tribunal,  nor  is  any  question  made  touching 
its  jurisdiction  over  the  parties,  but  that  it  had  no  jurisdiction  to  decide 
what  were  and  what  were  not  legal  ballots.  To  determine  this,  let 
us  look  at  the  questions  presented  and  how  they  were  presented.  A 
new  election  law  had  been  enacted  in  Mississippi^  and  the  first  election 
held  under  it.  It  required  marked  ballots  to  be  rejected,  and  they  had 
been  by  the  commissioners  of  Warren  County.  These  commissioners 
had  been  arrested  and  tried  as  criminals  in  the  United  States  court  for 
obeying  what  they  conceived  to  be  the  plain  language  of  the  law  in  the 
discharge  of  their  duty.  There  was  great  doubt  in  the  public  mind  as 
to  what  the  law  meant  by  marked  ballots,  and  as  to  who  should  reject 
them. 

Other  commissioners  were  arrested  and  threatened  with  prosecution 
for  their  acts  in  discharge  of  what  they  conceived  to  be  their  duty  under 
this  new  election  law.  The  public  was  greatly  excited  over  these  prose- 
cutions, and  citizens  were  saying  they  would  not  act  as  commissioners 
of  election  if  they  were  to  be  prosecuted  in  the  United  States  courts  for 
exercising  their  discretion  in  deciding  on  their  duty. 

Under  these  circumstances  the  district  attorney,  Mr.  Oglesby,  at  the 
suggestion  of  the  attorney-general,  filed  a  petition  for  mandamus,  pre- 
pared under  the  direction  of  the  attorney-general,  to  settle  these  ques- 
tions.   The  statute  under  which  it  was  filed  read  as  follows  : 

SECTION  2542  OF   THE   CODE   OF   MISSISSIPPI,  1880. 

On  the  petition  of  a  State  by  its  attorney-general,  or  a  district  attorney,  in  any 
matter  aftecting  the  public  interest,  or  on  petition  of  any  private  person  who  ia  inter- 
ested, the  writ  of  mandamus  shall  be  issued  by  a  circuit  court  comiuanding  auy  infe- 
rior tribunal,  corporation,  board,  officer,  or  person  to  do,  or  not  to  do,  an  act,  the  per- 
formance or  omission  of  which  the  law  especially  eujoius  as  a  duty  resulting  from  an 
office,  trust,  or  station ;  and  where  there  ia  not  a  plain,  adequate,  and  speedy  remedy  in  the 
ordinary  course  of  law. 

The  jurisdictional  facts  were  stated  in  the  petition,  and  were  certainly 
matters  greatly  affecting  the  public  interest.    It  asked  that  the  commis- 


372  DIGEST  OF  ELECTION  CASES. 

sioners  of  election  be  required  to  reassemble  and  perform  a  duty  required 
of  them  by  law,  to  wit,  the  rejection  of  certain  marked  ballots  which  had 
been  counted  by  them.  It  was  directed  to  an  inferior  tribunal  command- 
ing them  to  do  an  act  "  which  the  law'enjoined  as  a  duty." 

The  case  being  decided  adversely  to  the  petitioner  in  the  court  below, 
was  appealed  to  the  supreme  court. 

Campbell,  J.,  delivered  the  opinion  of  the  court. 

This  case  presents  for  adjudication  three  questions,  namely : 

1.  Whether  the  commissioners  of  election  have  the  right  to  reject  illegal  ballots  cast 
and  counted  by  the  inspectors  of  election  and  returned  to  them  with  the  statement  of 
the  result  at  the  precincts. 

2.  Whether  the  ballots  which  the  commissioners  of  election  for  Tunica  County  re- 
fused to  reject  should  have  been  rejected  by  them  as  being  illegal,  for  having  on  them 
a  device  or  mark  by  which  one  may  be  known  or  distinguished  from  another. 

3.  Whether  the  action  of  the  commissioners  was  final,  or  whether  they  may  be  re- 
quired by  maudamus  to  meet  and  act  in  the  matter  again,  as  the  court  may  order. 

A  negative  answer  to  the  first  question  would  have  rendered  further 
consideration  of  the  case  unnecessary.  An  aflQrmative  answer  to  the 
first  and  a  negative  answer  to  the  second  question  would  have  rendered 
the  determination  of  the  third  unnecessary.  Each  of  these  questions 
was  purely  local  and  each  required  the  construction  of  a  State  statute. 
Suppose  the  court  had  decided  that  the  commissioners  could  not  reject 
ballots  counted  and  returned  to  them  by  the  inspectors  j  this  would  have 
decided  the  case.  Would  any  one  have  said  such  decision  was  without 
jurisdiction?  If  the  court  had  decided  that  the  commissioners  could 
reject  illegal  ballots  returned,  but  that  ballots  with  printers'  dashes  on 
them  were  not  illegal,  this  would  have  decided  the  case.  Would  any 
lawj^er  say  such  decision  was  without  jurisdiction?  It  was  necessary 
to  decide  these  questions  first  before  the  court  was  called  on  to  decide 
the  third  proposition.  If  the  court  had  jurisdiction  to  decide  that  bal- 
lots marked  with  i^rinters'  dashes  were  not  illegal,  and  thus  decide  this 
case,  had  they  not  jurisdiction  to  decide  the  converse  of  the  proposition  t 
It  would  be  a  novel  legal  idea  that  a  court  had  full  jurisdiction  to  de- 
cide a  question  submitted  in  one  way,  but  if  it  decided  the  same  ques- 
tion the  other  way  it  was  obiter  or  without  jurisdiction.  The  right  to 
determine  the  case  at  all  carries  with  it  the  right  to  decide  either  way 
and  upon  all  points  involved. 

The  court  was  called  on  to  compel,  by  mandamus,  the  election  commis- 
sioners to  make  right  a  wrong  they  had  committed.  The  first  thing  to 
be  settled  was  whether  he  had  done  any  wrong.  If  the  court  had  de- 
cided that  the  commissioners  did  right  in  counting  the  marked  ballots, 
that  would  have  ended  the  case,  and  it  would  have  been  unnecessary 
to  go  further. 

The  court  held,  however,  that  the  commissioners  did  do  wrong,  but 
that  it  had  no  power  to  make  them  reassemble  and  right  that  wrong. 

It  might  be  said  the  court  should  have  stopped  short  with  this  decla- 
ration, but  it  did  not.  It  proceeded  to  show  what  was  the  proper  rem- 
edy for  the  wrong.  It  said  the  remedy  was  in  a  contested  election. 
That  in  State  cases  this  contest  must  be  made  before  State  tribunals 
and  in  Congressional  elections  before  Congress. 

To  claim  that  this  election  can  have  no  weight  in  a  contested  election 
before  Congress  because  the  court  said  Congress  must  settle  Congres- 
sional contests  would  lead  to  the  conclusion  that  it  could  have  no  weight 
in  a  contest  before  a  State  tribunal,  because  it  said  the  State  tribunal 
must  settle  State  contests. 


LYNCH    VS.    CHALMERS.  373 

THE  MISSISSIPPI  DECISION  RIGHT  ON  PRINCIPLE. 

The  majority  of  the  committee  contend  that  the  case  of  Oglesby  vs. 
Sigman  is  not  sustained  by  other  authority. 

The  first  and  leading  case  on  the  subject  of  marked  ballots  was  in 
Pennsylvania,  in  The  case  of  The  Commonwealth  z^s.Woelper,  3  S.  and  R., 
29.  The  opinion  was  delivered  by  Chief  Justice  Tighlman  and  concurred 
in  fully  in  separate  opinions  by  Justices  Yeates  and  Gibson,  and  they 
all  held  that  the  law  should  be  strictly  construed  as  written.  The  court 
said: 

The  tickets  in  favor  of  those  persons  who  sncceeded  in  the  election  had  on  them 
the  engraving  of  an  eagle.  The  judge  who  tried  the  case  charged  the  jury  that  these 
tickets  ought  not  to  have  been  counted.  The  case  is  certainly  within  the  words  of 
the  law.  The  tickets  had  something  more  than  the  nances  on  them.  But  is  it  within 
the  meaning  of  the  law  ?  I  think  it  is.  This  engraving  might  have  several  ill  eflFect«. 
In  the  first  place,  it  might  be  perceived  by  the  inspector,  even  when  folded.  This 
knowledge  might  possibly  influence  him  in  receiving  or  rejecting  the  vote.  But  in 
the  next  place,  it  deprived  those  persons  who  did  not  vote  the  German  ticket  of  that 
secrecy  which  the  election  by  ballot  was  intended  to  secure  to  them.  A  man  who  gave 
in  a  ticket  without  an  eagle  was  set  down  as  an  anti-German  and  exposed  to  the  ani- 
mosity of  the  party.  Another  objection  is  that  the  symbols  of  parity  increase  that 
heat  which  it  is  desirable  to  assuage.  We  see  that  at  the  election  some  wore  eagles 
on  their  hats.  The  case  thus  falling  within  the  words  and  practices  of  this  kind  lead- 
ing to  inconvenience,  I  think  the  court  ought  not  exercise  its  ingenuity  in  support  of 
these  tickets.  Let  us  at  least  prevent  future  altercations  at  elections  by  laying 
down  such  plain  rules  for  the  conduct  of  inspectors  as  cannot  be  mistaken.  I  am  for 
construing  the  by-law  as  it  is  written,  and  rejecting  all  tickets  that  have  anything  on 
them  more  than  the  names.  This  objection  strikes  at  the  root  of  the  election,  for  the 
evidence  is  that  all  the  tickets  in  favor  of  the  defendants  were  stamped  with  an  eagle. 
Whatever,  therefore,  may  be  the  law  on  other  points,  it  is  clear,  upon  the  whole,  that 
the  defendants  were  not  duly  elected. 

The  precise  same  doctrine  was  held  in  Oregon.  '  The  court  says : 

Section  30,  page  572,  of  the  Code  provides  that  "all  ballots  used  at  any  election 
in  this  State  shall  be  written  or  printed  on  a  plain  white  paper  without  any  mark  or 
designation  being  placed  thereon  whereby  the  same  may  be  known  or  designated." 
The  voter  in  this  instance  is  conclusively  presumed  to  have  had  knowledge  of  this 
requirement  and  to  have  had  it  in  his  power  to  comply  with  it  by  using  a  proper 
ballot.  It  was  a  matter  entirely  under  his  own  control,  and  if  he  chose  to  disregard 
the  law,  he  cannot  complain  if  the  consequence  was  that  his  vote  was  lost.  (The 
State  V8.  McKinnon,  8  Oregon,  500.) 

This  fully  sustains  the  Mississippi  decision,  even  if  we  admit  the  dis- 
tinction taken  by  the  majority  report  that  the  voter  is  onlj-^  bound  to  ob- 
serve so  much  of  the  law  as  he  could  by  the  exercise  of  proper  dili- 
gence in  matter  under  his  control.  The  California  case  cited  by  the 
majority,  though  it  ditters  from  the  case  of  Perkins  vs.  Carraway  re- 
cently decided  in  Mississippi,  as  to  the  spaces  between  the  names  on 
the  ticket,  sustains  Oglesby  vs.  Sigman  as  to  the  marks.  The  court 
say: 

There  are,  however,  other  requirements  of  the  Code  within  the  power  of  the  elector 
to  control,  and  these,  if  willfully  disregarded,  should  cause  his  ballot  to  be  rejected. 
He  can  see,  for  instance,  that  his  ballot  is  free  from  every  mark,  character,  device,  or 
thing  that  would  enable  any  one  to  distinguish  it  by  the  back,  and  if,  in  willful  dis- 
regard of  law,  he  places  a  name,  number,  or  other  mark  on  it,  he  cannot  complain  if 
his  ballot  is  rejected  and  he  loses  his  vote.     (Kirk  v.  Rhoades,  46  Cal.,  398.) 

The  same  doctrine  was  held  in  Alabama. 


374  DIGEST    OF   ELECTION    CASES. 

Before  Hon.  Louis  Wyeth,  Judge  of  the  Fifth  Judicial  Court. 

Thk  State  of  Alabama,  Cullman  County : 

Charles  Plato  ) 

vs.  >  Contest  of  election. 

Julius  Damus.  > 

In  this  case  Charles  Plato  contests  the  election  of  Julius  Damns  to  the  office  of 
mayor  of  the  town  of  Cullman,  in  the  county  of  Cullman,  claiming  to  have  been 
elected  to  that  office  himself  by  a  majority  of  the  votes  cast  at  the  election  held  on 
the  first  Monday  in  April,  1879. 

The  respondent  claims  to  hold  the  office  under  the  certificate  of  election  issued  by 
the  proper  officers  under  the  provisions  of  the  "act  of  assembly  to  establish  a  new- 
charter  for  the  town  of  Cullman."     (Pamphlet  Laws  of  1879,  p.  304,  section  9.) 

On  examining  and  counting  the  votes  it  appears  that  fifty-four  of  tbem  were  cast 
for  the  contestant  and  twenty-seven  for  the  respondent ;  of  these  fifty-tonr  votes 
given  for  the  contestant,  fifty-two  had  printed  on  them  at  the  top  of  the  ballot  the 
words  "  Corporation  ticket,"  and  of  the  twenty-seven  votes  cast  for  respondent 
three  had  in  like  manner  printed  thereon  the  same  words,  and  the  question  for  me  to 
decide  is  whether  or  not  those  words  rendered  the  ticket  on  which  they  were  printed 
illegal  ballots,  and  such  as  must  be  rejected. 

The  act  approved  February  12,  1879,  Pamphlet  Laws,  pp.  72-'3,  requires  that  the 
ballot  must  be  a  plain  piece  of  white  paper  without  any  figures,  marks,  rulings,  char- 
acters, or  embellishments  thereon,  *  *  *  on  which  must  be  written  or  printed 
*  •  *  only  the  names  of  the  persons  for  whom  the  elector  intends  to  vote,  and  must 
designate  the  office  for  which  each  person  so  named  is  intended  by  him  to  be  chosen, 
and  any  ballot  otherwise  than  described  is  illegal,  and  must  be  rejected. 

The  law  under  which  the  election  now  being  considered  was  held,  in  section  4, 
Pamphlet  Laws  1879,  p,  305,  declares  "that  the  election  provided  for  in  this  charter 
shall  be  regulated  by  the  general  State  election  law." 

The  judicial  officer  of  the  State  has  nothing  to  do  with  the  propriety  of  a  statute. 
If  not  void  by  reason  of  a  constitutional  inhibition,  the  judicial  duty  is  limited  to 
their  construction  and  enforcement. 

These  ballots  had  more  than  only  the  names  of  the  persons  for  whom  the  elector  in- 
tends to  vote,  or  the  designation  of  the  office,  and  must  be  rejected  because  illegal. 
Such  is  the  mandate  of  law,  and  so  I  must  declare  it. 

It  is  considered,  adjudged,  and  ordered  that  the  election  of  Julius  Damns,  asmayorof 
the  town  of  Cullman,  in  the  countyof  CuUman,  be  confirmed,  and  that  the  contestant 
pay  the  costs  of  this  court. 

LOUIS  WYETH, 

Judge,  ^c. 

June  9, 1879. 

Precisely  the  same  doctrine  was  held  by  this  committee  in  the  case  of 
Yeates  vs.  Martin,  and  the  opinion  on  that  point  prepared  by  Mr.  Field, 
now  on  the  supreme  bench  of  Massachusetts.    It  said : 

One  hundred  and  eight  votes  for  Mr.  Martin  were  thrown  out  not  counted,  because 
they  had  on  them  the  words  "  Republican  ticket,"  at  or  near  the  head  of  the  ticket,  on 
the  same  side  as  the  name  of  the  candidate  and  office.     They  were  thrown  out  on  the 

f;roundthat  the  words  "Republican  ticket"  were  a  device  within  the  meaning  of  the 
aws  of  North  Carolina. 

If  these  words  constitute  a  device  within  the  meaning  of  the  law,  the  statute  is 
plain  that  the  ballots  are  void  and  are  not  to  be  counted. 

Either  way,  we  think  that  words  prominently  printed  on  a  ticket,  and  Intended  to 
designate  or  describe  it,  and  which  have  a  distinct  meaning  in  themselves,  such  as, 
if  untrue,  might  mislead  the  voter,  and  whether  true  or  untrue  would  render  the 
ticket  easily  distinguishable,  must  be  held  to  be  a  device  within  the  meaning  of  the 
law  (McCrary  on  Elections,  $  401).  These  votes  were  rejected  by  the  State  authorities, 
and  we  think  rightfully. 

It  is  a  simple  question  whether  this  statute  is  mandatory  or  merely 
directory. 
McCrary,  in  American  Laws  of  Elections,  section  401,  says: 

It  is  quite  clear  where  the  statute  distinctly  declares  that  ballots  having  distin- 
guishing marks  upon  them  shall  not  be  received  or  shall  be  rejected,  it  should  be  con- 
strued as  mandatory  and  not  merely  directory. 


LYNCH    VS.    CHALMERS.  •  375 

The  Indiana  courts  hold  their  statute  mandatory  if  the  marks  appear 
on  the  back  of  the  ticket.  The  language  of  the  Mississippi  statute 
shows  it  was  intended  to  apply  to  marks  on  the  face  as  well  as  the 
back.     After  prohibiting  marks  or  devices,  it  says  : 

But  tliis  shall  not  prohibit  the  erasure,  correction,  or  insertion  of  any  name  by 
pencil  mark  or  ink  upon  the  face  of  the  ballot. 

This  exception  as  to  one  kind  of  marks  on  the  face  of  the  ticket 
clearly  shows  that  any  other  marks  on  the  face  of  the  ticket  are  pro- 
hibited. We  can  see  the  marks  on  the  contestant's  ticket  ourselves, 
and  it  would  be  our  duty  to  reject  them  without  any  decision  from  the 
supreme  court  of  Mississijipi.  We  hold,  therefore,  that  the  statute  was 
mandatory,  and  the  decision  right  in  itself.  If  the  court  had  decided 
as  the  maiority  of  the  committee  now  decide,  it  would  have  produced 
the  utmost  confusion  in  the  State. 

A  strict  construction  of  the  law  is  always  safest  and  best,  and  espe- 
■cially  of  law  which  refers  to  political  powers,  duties,  or  rights. 

When  we  launch  into  the  broad  sea  of  latitudinous  construction  we 
have  neither  chart  nor  comjiass,  and  the  la^  becomes  a  dangerous  in- 
strument in  the  hands  of  those  who  construe  it  and  who  may  contract 
or  expand  it  to  suit  the  demands  of  those  in  power. 

A  contrary  decision  would  have  launched  every  board  of  election 
commissioners  in  the  State  on  a  sea  of  uncertain  speculation  as  to  what 
were  and  what  were  not  marks  within  the  meaning  of  the  law.  Fraud 
and  corrujjtion  could  be  covered  under  their  discretion  to  determine 
this  question,  and  the  whole  election  machinery  could  be  converted  into 
a  political  engine  for  partisan  use.  Certainty  in  law  is  essential  to  the 
preservation  of  civil  rights,  and  the  case  of  Oglesby  vs.  Sigman  gave 
certainty  to  the  election  laws  of  Mississippi. 

There  is  no  longer  any  doubt  or  uncertainty.  This  alone  being  a 
matter  of  great  "  public  interest"  would  have  justified  the  district  at-, 
torney,  Oglesby,  in  suing  out  his  petition  for  mandamus;  and  if  there 
were  no  other  ground  for  it,  this  alone  would  sustain  the  jurisdiction  of 
the  court.  It  was  not  a  case  of  Lynch  vs.  Chalmers  to  settle  a  Congres- 
sional election,  but  of  the  district  attorney  vs.  the  election  commission- 
ers to  settle  great  questions  of  public  interest. 

THE  EFFECT  OF  STATE  DECISIONS  OF  STATE  STATUTES. 

If  any  rule  of  law  can  ever  be  regarded  as  settled,  certainly  the  rule 
that  Federal  authorities  would  follow  the  construction  of  State  statutes 
by  State  courts  must  be  regarded  as  settled  by  a  long  line  of  able  and 
unbroken  decisions.  The  only  exceptions  made  to  this  rule  by  the  Su- 
preme Court  of  the  United  States  are  where  the  State  courts  have  made 
conflicting  decisions,  as  in  the  case  of  the  city  of  Dubuque,  1  Wall., 
175,  or  in  cases  arising  under  the  twenty-fifth  section  of  the  judiciary 
act. 

From  the  time  of  the  case  of  Shelby  vs.  Gray  (in  11  Wheaton,  361), 
through  Green  vs.  IS^eal  (6  Peters,  291),  Christy  vs.  Pritchett  (4  Wallace, 
201),  Tioga  Railroad  vs.  Blossburg  Kailroad  (20  Wallace,  137),  down  to 
Elm  wood  vs.  Macey  (2  Otto,  289),  an  unbroken  line  of  decisions  will  be 
found. 

The  court  say,  in  the  case  of  Green  vs.  Neal : 

The  decision  of  this  question  by  the  highest  tribunal  of  a  State  should  be  consid- 
ered as  final  by  this  court,  not  because  the  State  tribunal,  in  such  a  case,  has  any 
power  to  bind  this  court,  but  because  a  fixed  and  received  construction  by  a  State  in 
ta  own  court  makes  it  part  of  tlie  State  law. 


376  DIGEST  OF  ELECTION  CASES. 

In  the  case  of  the  Tioga  Railroad  Company  vs.  the  Blossburg  Rail- 
road, in  20  Wallace,  143,  the  court  uses  the  following  language : 

These  decisions  upon  the  construction  of  the  statute  are  binding  upon  us,  whatever 
we  may  think  of  their  soundness  on  general  principles. 

See  Jefferson  Branch  Bank  vs.  Skelly  (1  Black,  443);  Gut  t«.  The  State  (9  Wallace^ 
37);  Randall  vs.  Brigham  (7  Wallace,  541);  Secomb  rs.Railroad  Company  (23  Wallace,. 
117);  Polk's  Lessee  vs.  Wendell  (9  Cranch,  98);  and  Nesmith  vs.  Sheldon  (7  Howard,. 
818).     Numerous  other  adjudications  of  that  court  could  be  cited  to  the  same  effect. 

It  is  now  maintained  that  this  doctrine  applies  only  as  a  rule  of  prop- 
erty. The  only  excuse  for  this  new  idea  to  be  found  in  the  decisions  in 
the  Supreme  Court  is  where  the  court  say  they  will  not  follow  the  last 
decision  of  a  State  court  changing  the  construction  of  its  laws  after  the 
first  decision  has  become  a  rule  of  property ;  otherwise  the  Supreme 
Court  of  the  United  States  would  follow  the  new  construction  given  by 
the  State  court.  To  say  that  the  Supreme  Court  of  the  United  States- 
will  only  follow  a  State  court  "on  a  rule  of  property"  is  a  total  miscon- 
ception of  the  principle  announced  by  the  court.  But  whatever  may 
be  the  rule  in  the  Supreme  Court  of  the  United  States,  Congress  has  in 
every  case,  without  exception,  followed  this  rule,  and  in  the  Tennessee 
cases  in  the  Forty-second  Congress,  and  the  Iowa  cases  in  the  Forty- 
sixth  Congress,  extended  the  rule  to  following  the  construction  of  the 
State  laws  given  by  the  governor  of  a  State.  The  same  rule  was  fol- 
lowed, and  on  the  question  of  marked  ballots,  in  case  of  Neff  vs.  Shank* 
in  the  Forty-third  Congress,  and  Yeates  vs.  Martin  in  the  Forty-sixth 
Congress.  The  same  rule  was  followed  in  Bisbee  vs.  Hull,  and  the  doc- 
trine broadly  laid  down  as  correct  in  Boynton  vs.  Loring  in  the  same 
Congress.     We  cite  the  language  of  the  committee  in  these  cases. 

CONGEESS  FOLLOWS  THE  STATE  DECISIONS. 

This  rule  was  first  established  in  the  Forty-second  Congress  in  what 
is  called  the  Tennessee  cases,  when  the  report  was  made  by  the  Hon. 
a.  W.  McCrary : 

In  a  report  from  the  Committee  on  Elections,  adopted  by  this  House  April  11, 1871^ 
in  the  matter  of  the  Tennessee  election  (Digest  of  Election  Cases,  compiled  by  J.  M. 
Smith,  p.  1),  the  committee  say: 

"It  is  a  well-established  and  most  salutary  rule  that  where  the  proper  authorities 
of  the  State  government  have  given  a  construction  to  their  own  constitution  or  stat- 
utes, that  construction  will  be  followed  by  the  Federal  authorities.  This  rule  is  abso- 
lutely necessary  to  the  harmonious  working  of  our  complex  government.  State  and 
national,  and  your  committee  are  not  disposed  to  be  the  first  to  depart  from  it. 

This  decision  was  cited  with  approbation  in  the  Forty-sixth  Congress 
in  the  Iowa  cases,  and  in  the  report  on  these  cases,  signed  by  Messrs. 
Field,  Keifer,  Calkins,  Camp,  Weaver,  and  Overton,  they  say: 

We  are  not  disposed  to  be  the  first  to  depart  from  it,  and  we  certainly  think  that  such 
a  decision,  made  in  good  faith  and  acquiesced  in  at  the  time  by  the  people  of  the 
State,  and  followed  by  a  full  and  fair  election,  should  not  be  overthrown  or  ques- 
tioned, except  for  the  gravest  reasons,  founded  on  an  undoubtiug  conviction  that  it 
was  plainly  an  error,  and  that  the  error  had  worked  some  substantial  injury. 

In  the  same  case  Mr.  Beltzhoover  says : 

2.  The  question  whether  the  constitution  of  the  State  of  Iowa  "  must  be  amended 
in  order  to  effect  a  change  in  the  election  of  State  officers,"  it  is  one  which  it  is  the 
exclusive  right  of  the  State  to  decide.  The  persons  to  whom  the  constitution  and 
laws  of  Iowa  confide  this  decision  have  made  it,  and  their  determination  is  a  finality, 
and  is  conclusive  on  all  parties.  The  committee  have  not  the  right  to  review  th& 
decision. 

The  case  of  Curtiu  vs.  Yocum,  in  the  Forty -sixth  Congress,  turned 
upon  the  construction  of  the  constitution  of  Pennsylvania,  and  the  mi- 


LYNCH    VS.    CHALMERS.  377 

nority  report,  which  was  made  by  Mr.  Calkius  and  signed  by  Messrs. 
Keifer  and  Weaver,  relied  upon  the  construction  of  the  State  court,  and 
used  this  emphatic  language,  speaking  of  an  unregistered  voter: 

We  think  this  question,  under  the  present  constitution  and  laws  of  Pennsylvania,  not  an 
open  one.  The  highest  court  of  judicature  of  the  State  has  decided  it;  at  least  it  has  given 
a  construction  to  that  part  of  the  new  constitution  under  consideration,  and  ire  quote  there- 
from. 

This  minority  report  was  adopted  by  Congress,  and  a  Greenbacker 
was  permitted  to  retain  his  seat  in  a  Democratic  House. 

In  the  case  of  Bisbee  vs.  Hull,  in  the  Forty-sixth  Congress,  the  decis- 
ion of  the  supreme  court  of  Florida  was  held  to  be  conclusive  by  the 
committe '  and  the  House.  When  the  admission  of  Mr.  Hull,  who  held 
the  governor's  certificate,  was  under  discussion,  Mr.  Calkins  said : 

How  can  this  cei-tificate  stand,  even  aB  establishing  a  prima  facie  right,  when  th& 
basis  upon  which  it  rests  has  been  swept  away  by  a  decision  of  the  supreme  court  of  the 
State  of  Florida? 

When  the  case  was  considered  on  its  mgrits,  the  committee  unani- 
mously followed  the  decision  of  the  supreme  court  of  Florida,  and 
a  Democratic  House  unseated  a  Democrat  and  seated  a  Republican 
under  it. 

*The  report  made  by  Mr.  Keifer  uses  this  emphatic  language: 

The  opinion  of  the  supreme  court  of  Florida,  pronounced  by  the  chief  justice,  on 
the  question  of  canvassing  the  vote  of  the  county  of  Madison,  will  be  found  in  th& 
Record,  p.  221. 

*  *  *  "As  already  stated,  duly  certified  copies  of  these  returns  were  put  in  evi- 
dence by  the  contestee;  they  are  signed  by  all  the  oflScers  of  the  election  ;  they  are 
perfect  in  form,  clear  and  explicit  in  the  statement  of  the  votes  cast,  and  have  all  been 
adjudged  by  the  unanimous  opinion  of  the  supreme  court  of  Florida,  in  a  case  before  it,  to  be- 
good  and  valid  returns  of  the  election  at  these  polls."     (17  Florida  Rep.,  p.  17.) 

Again,  in  the  case  of  Boynton  vs.  Loring,  the  report,  which  was  pre- 
pared by  Mr.  Calkins,  and  signed  by  every  member  of  the  committee 
except  Mr.  Weaver,  contains  this  clear  and  explicit  announcement  of 
the  doctrine  we  contend  for.    It  says : 

But  it  is  not  necessary  for  us  to  decide  this  question,  and  toe  do  not,  much  preferring  that 
the  courts  of  Massachusetts  shall  first  construe  thiir  oton  statutes,  and  when  they  have  under- 
gone  judicial  construction  we  would  follow  the  decisions  of  the  courts  of  that  State. 

The  Committee  on  Elections  is  as  much  a  continuing  body  in  contem- 
plation of  law  as  a  court,  and  should  have  as  much  respect  for  its  own 
rulings  as  a  court  has  for  its  decisions,  and  "  stare  decisis''''  should  be  our 
rule.  Under  the  rule  that  Federal  authorities  follow  the  construction 
given  by  State  authorities  to  their  own  statutes,  two  Tennessee  Re- 
publicans were  seated  in  the  Forty-second  Congress,  Shanks,  a  Repub- 
lican, was  seated  in  the  Forty-third  Congress,  Yocum,  a  Greenbacker, 
Bisbee  from  Florida,  and  three  Republicans  from  Iowa  were  seated  in 
the  Forty-sixth  Congress.  To  undertake  now  to  change  this  rule  or 
limit  it  to  a  rule  of  property,  may  subject  us  to  the  same  severe  rebuke 
for  oscillation  administered  to  a  State  court  by  the  Supreme  Court  of 
the  United  States.  To  say  in  one  Congress  we  will  follow  the  decision 
of  the  supreme  court  of  Massachusetts  in  construing  its  statute  when 
made,  and  in  the  next  Congress  refuse  to  extend  the  same  rule  to  the 
sui)reme  court  of  Mississippi,  is  glaring  inconsistency  or  invidious  dis- 
tinction between  States.  If  we  have  respect  for  ourselves,  we  should 
make  no  radical  change  of  ruling  that  may  subject  us  to  the  charge 
that  we  "  immolate  truth,  justice,  and  law  because  party  has  erected 
the  altar  and  decreed  the  saerifice." 


378  DIGEST   OF   ELECTION    CASES. 

LIMITATIONS  ON  THE  RULE. 

But  while  the  majority  of  the  committee  hare  expressed  some  views 
looking  to  a  change  in  this  rule,  said  to  be  essential  to  the  preservation 
of  our  complex  system  of  government,  they  do  not  go  to  that  extent. 
They  say : 

It  need,  however,  hardly  be  added  that  a  line  of  carefully  considered  cases  in  the 
States,  in  which  such  courts  have  undoubted  jurisdiction,  so  far  as  they  would  apply 
in  principle,  would  go  a  long  way  towards  settling  a  disputed  point  of  construction 
in  any  State  election  law.  In  fact  it  may  be  said  that  it  would  probably  be  the  duty 
of  Congress  to  follow  the  settled  doctrine  thus  established. 

We  have  here  two  new  limitations  on  the  old  rule. .  First,  it  must  not 
be  a  single  decision,  but  "  a  line  of  carefully  considered  cases."  Sec- 
ond, the  court  must,  in  the  opinion  of  Congress,  when  collaterally  con- 
sidering the  subject,  have  had  jurisdiction  of  the  case.  It  is  a  new  and 
somewhat  startling  proposition  that  the  opinion  of  a  supreme  court  is 
iiot  to  be  considered  authority  until  it  has  been  repeated.  If  the  citi- 
zens of  a  State  acquiesce  in  a  decision  of  their  own  supreme  court  it 
may  and  often  does  happen  that  the  court  is  not  called  on  to  reafl&rm 
its  opinion,  because  no  one  doubts  or  disputes  its  first  ruling  on  the 
subject,  and  yet  Congress  is  now  asked  not  to  regard  as  authority  any- 
thing less  than  a  line  of  well-considered  cases. 

DO   STATE  LAWS  BECOME  FEDERAL  LAWS? 

Again  the  majority  report  says: 

Another  suggestion  in  argument  needs  greater  amplification  than  we  can  give  it 
now,  which  is:  that  by  adopting  the  machinery  of  the  States  to  carry  on  Congres- 
sional elections  this  House  stands  in  the  nature  of  an  appellate  court  to  interpret 
these  election  laws  so  far  as  they  relate  to  Congressional  elections ;  that  it  ought 
not  in  this  view  to  be  bound  by  the  decisions  of  the  State  courts  at  all,  unless  the 
reasons  given  by  them  are  convincing  to  the  judicial  mind  of  the  House  while  acting 
in  the  capacity  of  a  court. 

The  suggestion  made  in  argument  was  that  the  State  election  laws  be- 
came Federal  laws  when  Congressmen  were  elected  under  them,  and 
therefore  Congress  had  the  same  right  to  review  the  decision  of  a  State 
oourt  in  construction  of  these  laws  that  the  Supreme  Court  of  the  United 
States  had  to  review  the  decision  of  a  State  court  on  any  question  arising 
tinder  the  twenty-fifth  section  of  the  judiciary  act.  This  was  au  ingen- 
ious suggestion,  but  it  is  completely  refuted  by  the  Supreme  Court  of  the 
United  States  in  ex  parte  Siebold  (10  Otto).  The  court  say,  "The  ob- 
jection that  the  laws  and  regulations,  the  violation  of  which  is  made  pun- 
ishable by  the  act  of  Congress,  are  State  laws  and  have  not  been  adopted 
by  Congress,  is  no  sufficient  answer  to  the  power  of  Congress  to  impose 
punishment.  It  is  true  that  Congress  has  not  deemed  it  necessary  to 
interfere  with  the  duties  of  the  ordinary  officers  of  election,  but  has  been 
content  to  leave  them  as  prescribed  by  State  laics.^  Again,  "the  para- 
mount character  of  those  made  by  Congress  has  the  effect  to  supersede 
those  made  by  the  State,  so  far  as  the  two  are  inconsistent,  and  no 
further."  The  great  question  in  this  case  was  whether  Congress  could 
make  a  law  to  punish  a  man  for  the  violation  of  State  election  laws  in 
Congressional  elections,  and  the  able  opinion  of  the  court  would  have 
been  wholly  unnecessary  if  the  new  theory  now  advanced  were  true  that 
the  State  laws  become  Federal  laws  simply-  because  Congressmen  are 
elected  under  them.  Such  an  idea  is  wholly  repugnant  to  the  Constitu- 
tion, which  expressly  provides  that  the  States  may  make  laws  for  the 
election  of  Congressmen  while  Congress  may  make,  alter,  or  amend  them. 


LYNCH    VS.    CHALMERS. 


379 


THE   SHOESTRING  DISTRICT. 

There  is  no  satisfactory  result  flowing  from  this  contest.  The  public 
have  been  led  to  believe  that  there  was  17,000  Republican  majority 
in  the  sixth  district  of  Mississippi,  familiarly  called  the  "  shoestring 
district,"  being  five  hundred  miles  long  and  only  forty  miles  wide,  and 
yet  the  majority  of  this  committee,  after  a  thorough  investigation,  only 
claim  a  majority  for  contestant  of  three  hundred  and  eighty-five  votes. 
The  counties  of  Claiborne,  Quitman,  Sharkey,  Tunica,  and  Wilkinson 
are  shown  by  the  census  to  have  5,795  majority  of  colored  over  white 
voters  and  yet  there  is  no  complaint  made  by  the  contestant,  and  no 
contest  over  the  votes  in  these  counties,  although  they  gave  1,762  ma- 
jority for  the  sitting  member.  Again,  the  public  have  been  led  to  be- 
lieve that  great  frauds  have  been  practiced  in  this  district,  and  yet  the 
only  fraud  now  claimed  by  the  majority  report  is  a  change  of  one  hun- 
dred and  ninety  votes  at  Kingston,  in  Adams  County. 

There  is  no  dispute  about  the  vote  in  the  counties  of  Claiborne,  Quit- 
man, Sharkey,  Tunica,  and  Wilkinson,  and*  the  vote  in  these  counties, 
as  shown  by  the  sworn  bill  in  chancery  of  Mr.  Lynch,  is  as  follows : 


Coonties. 

Chalmers. 

Lynch. 

1,061 
153 
484 
239 

1,691 

288 
83 
175 

See  Record,  p. 

10. 

Quitman 

Sharkey 

Tunica 

506 

814             "             " 

3,628 

1,866 

Majority  for  Chalmers,  1,762. 

In  the  disputed  counties  the  returns  certified  to  the  secretary  of  state 
are  as  follows : 


Counties. 

Chalmers. 

Lynch. 

1,387 

301 

225 

59 

951 

1,014 

1,607 

898 
979 
352 
333 
136 
57 
772 

See  Record,  p.  13-14. 
"               '*    14-15. 

Bolivar 

"               "    15-16. 

"    17-18. 

Jeffcison 

"               "    19-20. 

Warren .. 

"                "    20-21. 

Washington 

"               "    22-23. 

5,544 

3,527 

Majority  for  Chalmers,  2,017. 

Total  majority,  3,779. 

If  we  follow  the  sujirenie  court  of  Mississippi,  and  reject  the  marked 
ballots,  Chalmers  is  elected  by  a  large  majority. 

If  we  count  the  marked  tickets  rejected  in  Warren  County,  2,029  for 
Lynch,  and  20  for  Chalmers;  the  Rodney  box  in  Jefferson,  which  is  ad- 
mitted, 247  for  Lynch,  and  92  for  Chalmers;  the  Stoneville  box  in  Wash- 
ington County,  315  for  Lynch,  and  60  for  Chalmers ;  Deadman's  Bend 
and  Palestine,  in  Adams  County;  if  we  further  change  the  vote  at 
Kingston,  as  it  is  claimed  by  the  contestant,  giving  him  190  votes,  and 
take  the  same  from  contestee,  the  result  is: 


380  DIGEST    OF    ELECTION    CASES. 

Lynch.  Chalmers. 

Returned  vote 5,393  9,172 

Add  rejected  votes,  Warren 2,029  20 

Rodney  box  in  Jefferson 247  92 

Stonevllle,  in  Washington 315  60 

Deadman's  Bend,  Adams  County 85  15 

Palestine,  Adams  County 231  IT 

8, 300  9, 376 

Change  Kingston  box,  adding 190  Subtracting      190^ 

8,490  9,186 

8,490 

Leaves  majority  for  Chalmers 696 

So  that  the  contestant  is  clearly  defeated,  unless  the  certificates  of  the 
United  States  supervisors  of  elections  and  the  certificates  of  clerks  as 
to  election  returns  over  which  they  have  no  control  and  no  power  to 
certify  are  received  as  legal  evidence.  We  therefore  recommend  the 
adoption  of  the  following  resolution  : 

Resolved,  That  John  R.  Lynch  was  not  elected  and  is  not  entitled  to  a 
seat  in  the  Forty-seventh  Congress  from  the  sixth  district  of  Mississippi. 
Resolved,  That  James  R.  Chalmers  was  elected  and  is  entitled  to  his 
seat  in  the  Forty-seventh  Congress  from  the  sixth  district  of  Mississippi. 

GIBSON  ATHERTON. 
S.  W.  MOULTON. 
L.  H.  DAVIS. 


GU8TAVU8  SE8SINGHAU8  vs.  R.  GRAHAM  FROST. 
Third  Congrilssional  District  of  Missouri. 

Contestant  alleges  that  the  votes  of  a  large  number  of  the  electors  who  offered  to  vote 
for  him  were  illegally  rejected  by  the  judges  of  election,  because  their  names  were 
stricken  off  the  registration  list  by  the  board  of  revision ;  because  their  names 
were  misspelled  or  incorrectly  numbered  on  the  registration  list ;  because  some 
who  had  never  registered  or  voted  in  Saint  Louis  registered  only  on  the  day  of 
election,  and  because  some  who  had  never  registered  or  voted  in  Saint  Louis  ap" 
peared  at  the  proper  polling  places  and  offered  to  register  and  to  vote  for  con- 
testant, bat  the  oflScers  whose  duty  it  was  failed  and  refused  to  register  them. 

Contestant  further  alleges  that  a  large  number  of  ballots  headed  "  Chronicle  Selected 
Ticket,"  "  Greenback  Labor  Ticket,"  and  '' Hancock  Independent  Ticket,"  con- 
taining his  name  for  Representative  in  Congress  were  not  counted,  as  being  fraud- 
ulent and  designed  to  mislead  the  voter. 

That  a  large  number  of  ballots  were  not  counted  for  him  because  his  given  name  wa» 
not  printed  thereon. 

That  a  mistake  was  made  in  footing  up  the  returns  in  one  precinct  by  which  a  n  um- 
ber of  votes  were  lost  to  him,  and  a  number  added  to  contestee. 

That  a  ballot  made  up  of  parts  of  two  tickets,  with  only  one  name  for  each  office,  and 
that  of  contestant  for  Representative,  was  not  counted. 

Seld,  That  neither  the  constitution  of  Missouri  or  any  statute  in  force  in  Saint  Louis 
made  registration  an  absolute  prerequisite  or  qualification  to  vote.  The  charter 
and  ordinances  of  the  city  of  Saint  Louis  provide  for  a  system  of  registration,  but 
do  not  in  express  terms  make  registration  a  prerequisite  or  qualification  for  voting. 


SESSINGIIAUS    VS.    FROST.  381 

The  ordinance  of  the  city  being  followed  by  the  board  of  revision  in  striking  off  names, 
and  by  the  election  officers  in  refusing  to  receive  ballots,  and  the  constitution  of 
Missouri  having  authorized  the  general  assembly  alone  to  enact  a  registration 
law,  such  ordinance  was  of  no  binding  effect,  and  the  votes  of  those  who  offered 
to  vote  and  were  refused  must  be  counted  as  proven. 

The  tickets  with  different  headings  and  the  one  made  up  of  parts  were  legal  and  must 
be  counted,  and  so  must  the  tickets  that  had  not  the  given  name  of  contestant, 
the  evidence  showing  that  no  other  person  by  the  name  of  Sessinghaus  was  a  can- 
didate at  that  election  in  that  district  for  any  office. 

A  mistake  in  the  footing  of  returns  being  proven,  such  mistake  is  corrected  to  conform 
with  the  true  vote. 

The  House  adopted  the  majority  report. 


Febrtjary  17,  1883. — *Mr.  Miller,  from,  the  Committee  on  Elections, 
submitted  the  following 

REPORT: 

The  Committee  on  Elections,  to  whom  was  referred  the  contested  election 
case  of  the  third  Congressional  district  of  Missouri,  having  had  the  same 
under  consideration,  beg  leave  to  report : 

As  appears  from  the  returns  of  the  election  held  in  the  third  Con- 
gressional district  of  Missouri  on  the  2d  day  of  November,  1880,  R. 
Graham  Frost  (contestee)  received  9,487  votea;  Gustavus  Sessinghaus 
(contestant)  received  9,290  votes,  and  D.  O,  Connell  (Greenback)  re- 
ceived 266  votes. 

Mr.  Frost  having  a  plurality  of  197  votes  on  the  face  of  the  returns 
was  awarded  the  certificate  of  election. 

Within  the  statutory  period  after  the  issue  of  the  certificate  of  elec- 
tion, Mr.  Sessinghaus  caused  to  be  served  on  Mr.  Frost  a  notice  that  he 
would  contest  the  seat  held  by  the  latter  as  Representative  in  the  Forty- 
seventh  Congress  from  the  third  Congressional  district,  specifying  par- 
ticularly the  grounds  upon  which  such  contest  would  be  maintained. 

An  answer  was  shortly  after  filed  by  Mr.  Frost,  the  contestee  herein. 

Testimony  was  then  taken  on  the  part  of  the  contestant  and  contestee 
within  the  ninety  days  allowed  by  the  act  of  Congress. 

At  the  time  of  the  above  election  the  city  of  Saint  Louis  was  partially 
divided  into  three  Congressional  districts.  The  third  district  was  com- 
posed of  one  township  in  Saint  Louis  County  and  of  the  northern  part 
of  the  city  of  Saint  Louis. 

The  constitution  of  the  State  adopted  in  1875,  in  prescribing  the  qual- 
ifications of  voters,  reads  as  follows : 

Every  male  citizen  of  the  United  States,  and  every  male  person  of  foreign  birth  who 
may  have  declared  his  intention  to  become  a  citizen  of  the  United  States,  according 
to  law,  not  less  than  one  year,  nor  more  than  five  years  before  he  offers  to  vote,  who 
is  over  the  age  of  twenty -one  years,  possessing  the  following  qualifications,  shall  be 
entitled  to  vote  at  all  elections  of  the  people: 

1st.  He  shall  have  resided  in  the  State  one  year  immediately  preceding  the  election 
at  which  he  offers  to  vote. 

Note. — Hon.  James  M.  Ritchie,  of  Ohio,  reported  this  case  from  the  subcommittee, 
having  same  in  charge,  to  the  full  committee.  At  his  request  Mr.  Miller  was  desig- 
nated to  report  case  to  the  House.  In  doing  so  the  latter  has  incorporated  largely  lu 
this  report  the  exhaustive  and  able  report  of  Mr.  Ritchie. 


382  DIGEST  OF  ELECTION  CASES. 

2d.  He  shall  have  resided  in  the  county,  city,  or  town  where  he  shall  oft'er  to  vote 
at  least  sixty  days  immediately  preceding  the  election. 

By  this  same  constitution,  article  9,  section  20  et  seq.,  power  was  given 
the  citizens  of  Saint  Louis  to  frame  a  charter  not  inconsistent  with  any 
provision  of  the  said  constitution  for  the  government  of  that  city. 

Article  8,  section  5,  and  article  9,  section  7,  of  said  constitution  are 
as  follows,  viz : 

Art.  8,  Sec.  5.  The  general  assembly  shall  provide  by  law  for  the  registration  of 
all  voters  in  cities  and  counties  having  a  population  of  more  than  100,000  inhabitants, 
and  may  provide  for  such  registration  in  cities  having  a  population  exceeding  25,000 
inhabitants  and  not  exceeding  100,000,  but  not  otherwise. 

Art.  9,  Sec.  7.  The  general  assembly  shall  provide  by  general  laws  for  the  organiza- 
tion and  classification  of  cities  and  towns.  The  number  of  such  classes  shall  not  ex- 
ceed four,  and  the  power  of  each  class  shall  be  defined  by  general  laws,  so  that  all  such 
municipal  corporations  of  the  same  class  shall  possess  the  same  powers  and  be  subject 
to  the  same  restrictions.  The  general  assembly  shall  also  make  provision  by  general 
law  whereby  any  city,  town,  or  village  existing  by  virtue  of  any  special  or  local  law 
may  elect  to  become  subject  to  and  be  governed  by  the  general  laws  relating  to  such 
corporations. 

These  are  all  the  provisions  of  the  Missouri  constitution  bearing  on 
the  subject. 

In  pursuance  of  section  7,  article  9,  supra,  the  general  assembly  of 
Missouri,  in  1877,  enacted  as  follows,  viz : 

Sec.  4380.  All  cities  and  towns  in  this  State  containing  100,000  inhabitants  or  more 
shall  be  cities  of  the  first  class. 

Sec.  4385.  Any  city  or  town  in  this  State  existing  by  virtue  of  the  present  general 
law,  or  by  any  local  or  special  law,  may  elect  to  become  a  city  of  the  class  to  which 
its  population  would  entitle  it  under  the  provisions  of  this  article,  by  passing  an 
ordinance  or  proposition,  and  submitting  the  same  to  the  legal  voters  of  such  city  or 
town  at  an  election  to  be  held  for  that  purpose,  not  less  than  twenty  nor  more  than 
thirty  days  after  the  passage  of  such  ordinance  or  proposition ;  and  if  a  majority  of 
such  voters,  voting  at  such  electiou,  shall  ratify  such  ordinance  or  proposition,  the 
mayor  or  chief  officer  of  such  city  or  town  shall  issue  his  proclamation  declaring  the 
result  of  such  election,  and  thereafter  such  city  or  town  shall,  by  virtue  of  such  vote, 
be  incorporated  under  the  provisions  of  the  general  law  provided  for  the  government 
of  the  class  to  which  such  city  belongs,  which  class  shall  be  determined  by  the  last 
census  taken,  whether  State  or  national. 

Sec.  4389.  Any  city  of  the  first  class  in  this  State  may  become  a  body  corporate, 
under  the  provisions  of  this  article,  in  the  manner  provided  by  law,  &c. 

Then  follow  the  provisions  for  governing  cities  of  the  first  class,  and 
for  registration  and  elections  therein. 

Saint  Louis  never  elected  to  accept  the  provisions  of  this  law,  and  was 
not  governed  or  controlled  thereby,  nor  were  its  provisions  concerning 
registration  of  any  force  or  effect  in  said  city. 

There  was  also  another  statute,  which  did  apply  to  Saint  Louis,  viz : 

AN  ACT  to  provide  for  the  exercise  of  the  right  of  voting  by  persons  who  have  failed  to  register. 

Be  it  enacted  by  the  general  assembly  of  the  State  of  Missouri  as  follows  : 
Section  1.  In  all  State,  county,  and  municipal  elections  hereafter  held  in  any  city 
of  this  State  having  a  population  of  one  hundred  thousand  inhabitants  or  more,  no 
person  shall  be  deprived  of  the  right  of  voting  at  such  election  by  reason  of  having 
failed  to  register :  Provided,  That,  in  all  cities  where  registration  is  required  by  law, 
the  party  offering  to  vote,  but  who  from  any  cause  has  failed  to  register  before  he 
offers  to  vote,  shall  be,  on  the  day  of  such  election,  registered  by  a  special  registrar 
of  election,  appointed  by  the  judges  of  election  for  that  purpose  at  each  precinct,  as 
a  qualified  voter,  in  a  book  to  be  kept  for  that  purpose  ;  and  the  ballot  of  such  voter 
shall  be  received  and  counted  at  such  election  ;  and  such  registrar  shall  return  to  the 
register  of  voters  of  such  city  the  list  of  such  voters  so  registered  within  ten  days  after 
such  election,  provided  the  said  registrars  shall  be  sworn  as  provided  for  the  recorder 
of  voters  and  the  books  shall  contain  the  written  or  printed  oath  as  required  in  the 
regular  registration  books. 
Approved  March  30,  1877. 


SESSINGHAUS   VS.    FROST.  383 

The  Constitution  of  the  United  States,  article  1,  section  4,  is  as  fol- 
lows, viz  : 

The  times,  places,  and  manner  of  holding  elections  for  Senators  and  Representatives 
shall  be  prescribed  in  each  State  by  the  legislature  thereof;  but  the  Congress  may,  at- 
any  time,  by  law,  make  or  alter  such  regulations  except  as  to  the  places  of  choosing 
Senators. 

The  charter  adopted  by  Saint  Louis  in  1876,  in  pursuance  of  the  con- 
stitution of  Missouri,  article  9,  sections  20  et  seq.,  provided  for  registra- 
tion. It  was,  however,  never  adopted,  ratified,  or  acted  upon  In  any 
way  by  the  general  assembly  of  Missouri. 

The  municipal  assembly  of  Saint  Louis  in  1878  passed  a  city  ordi- 
nance providing  for  registration  in  said  city,  section  11  of  which  ordi- 
nance is  as  follows,  viz :  • 

Sec.  11.  The  mayor  shall  appoint  a  board  of  revision,  consisting  of  one  reputable 
citizen  from  each  ward  in  the  city  who  shall  possess  the  qualifications  of  a  member 
of  the  house  of  delegates,  whose  duty  it  shall  be  to  meet  with  the  recorder  of  voters,, 
at  his  office,  twenty  days  before  each  general.  State,  or  municipal  election,  for  the  pur- 
pose of  examining  the  registration,  and  making  aifll  noting  corrections  therein  as 
may  be  rendered  necessary  by  their  knowledge  of  errors  committed,  or  by  competent 
testimony  heard  before  the  board ;  a  majority  of  said  board  shall  be  necessary  to  do 
business,  and  the  mayor  shall  be  ex  officio  president  thereof.  They  shall  strike  from 
the  registration,  by  a  majority  vote,  names  of  persons  who  have  removed  from  the 
election  district  for  which  they  registered,  or  who  have  died,  and  shall  note  the  fact 
opposite  the  name  of  any  person  charged  with  having  registered  in  a  wrong  name,  or 
who  for  any  reason  is  not  entitled  to  registration  under  the  provisions  of  this  ordi 
nance,  which  person  shall  be  challenged  by  the  judges  of  election  when  presenting 
himself  to  vote,  and  rejected  unless  he  satisfy  said  judges  that  he  was  entitled  to  reg- 
ister, and  said  board  shall  also  place  on  said  books  the  names  of  such  persons  as  in 
their  judgment  have  been  improperly  rejected  by  the  recorder  of  voters.  They  shall 
sit  from  day  to  day,  not  exceeding  ten  days,  until  they  haye  completed  their  labors,, 
and  their  proceedings  shall  be  printed  daily  in  the  paper  doing  the  city  printing. 
They  shall  each  be  allowed  the  sum  of  three  dollars  per  day  for  their  services. 

This  is  the  only  section  bearing  on  the  question  at  issue.  It  differs 
somewhat  from  both  the  city  charter  and  the  State  statute  governiug 
those  cities  which  elected  to  become  cities  of  the  first  class. 

The  foregoing  are  substantially  all  the  enactments  controlling  this 
case  save  the  United  States  statutes. 

This  city  ordinance  was  adopted  subsequently  to  any  act  of  the  gen- 
eral assembly.  It  contains  forty-odd  sections,  and  prescribed  an  entire 
scheme  of  registration  and  election  for  Saint  Louis,  and  was  the  only 
law  by  which  registration  was  had  in  said  city. 

These  views  are  supported  by  Counsellor  Bell,  of  said  city,  at  pag& 
1814  of  Eecord. 

On  investigation  we  find  that  the  various  so-called  sections  of  the 
statutes  of  Missouri,  cited  in  the  report  of  the  minority  of  this  commit- 
tee, concerning  the  application  of  tiie  election  laws  of  the  State,  were 
placed  there  by  the  committee  appointed  by  the  general  assembly  of 
Missouri  to  revise  the  statutes  in  1879,  and  that  the  same  lack  the  rat- 
ification or  approval  of  that  assembly. 

I. 

The  evidence  of  the  following  witnesses,  who  testified  for  the  con- 
testant, and  which  is  absolutely  uncontradicted,  shows  that  they,  each 
and  every  one  of  them,  were  qualified  voters  under  the  laws  of  the 
State  of  Missouri,  and  entitled  to  vote  at  that  election ;  that  each  and 
every  one  of  them  had  previous  to  the  election  herein  complied  with  all 
the  provisions  of  ^the  registration  law,  and  that  they  had  been  by  the 
proper  officer  duly  registered  as  legal  voters  for  their  respective  pre- 


384 


DIGEST  OF  ELECTION  CASES. 


cincts ;  that  preceding  the  election  they  were  improperly,  wrongfully, 
and  illegally  stricken  off  the  registration  list  by  the  board  of  revision 
of  the  city  of  Saint  Louis ;  that  on  the  day  of  election  they  each  and 
«very  one  of  them  went  to  their  respective  and  proper  polling  precincts 
in  said  city  and  offered  to  cast  their  ballots  for  contestant  for  Kepresent- 
ative  in  Congress  from  said  district,  but  the  judges  of  election,  not  find- 
ing their  names  on  the  registration  list,  would  not  receive  and  count 
their  votes,  and  their  votes  never  have  been  counted,  viz  : 


Kecord  page. 

510.  Aerschbeck,  Sam. 

861.  Alvord,  Wm.  B. 
1234.  Bailey,  Peter 

491.  Ball,  George 

615.  Bartlett,  Geo. 

(i81.  BelljWm. 

750.  Bethge,  August 

462.  Betts,  Henry 

560.  Bloss,  Jno.  F. 

863.  Boothe,  F. 

459.  Broeder,  Casper  H. 
578.  Brown,  Ben. 

866.  Brown,  John 
918.  Bruder,  Jno.  G. 
970.  Bush,  Robert 
481.  Boekemeier,  Henry 

1008.  Cheatam,  Ike 
932.  Clayton,  John 
608.  Coleman,  Henry 

1595.  Coleman,  Robert 
452.  Corum,  Henry  C. 
626.  Cousins,  .Jno. 
359.  Cox,  Chas. 

617.  Crawford,  Antoine 
1029.  Cummings,  Edw. 

437.  Cummings,  Ed. 
833.  Davis,  Clark 
550.  Dodd,  Willis 
1044.  Douglass,  Thomas 
530.  Dugles,  Geo. 

618.  Dietring,  C.  H. 
790.  Ermantraut,  Henry 
624.  Edwards,  John 

1043.  Emery,  Jonathan 
629.  Fissman,  Henry 
495.  Fogler,  Frank 
955.  Frenning,  Louis 
596.  Gardner,  Woodford 
728.  Gieseker,  F.  W. 
654.  Goodin,  Jno. 
585.  Grassmuck,  Peter 
652.  Green,  Cato 
450.  Green,  Chas. 

1393.  Green,  Edw. 
447.  Green,  Silas 

460.  Hale,  Jefferson 


Record  page. 

1669.  Hamig,  H.  F. 
974.  Harder,  Ulrich 
453.  Hartman,  Jno.  F. 

636.  Hawkins,  Christian 
1125.  Hayes,  Isaac 
1173.  Henderson,  Tony 
1056.  Hendricks,  Spencer. 

941.  Hennerla,  A.  B. 

498.  Herdler,  Carl 

493.  Hilf,  Christ. 

895.  Horstbrink,  Louis 

814.  Howard,  Dinkey 

500.  Howard,  Wesley 

680.  Howarth,  Fred. 
r431.  Howell,  L.  M. 
1060.  Hull,  Morris 

743.  Johauningmeyer,  Henry 

160.  Johnson,  Alfred 
1532.  Johnson,  Geo. 
1165.  Johnson,  John 

63i.  Johnson,  Merritt 
1073.  Johnson,  Pat 

987.  Johnson,  Simeon 

631.  Jenkins,  Chas. 

757.  Koboldt,  Henry 

809.  Kraemer,  C.  H. 

546.  Landwehr,  J.  H. 
1586.  Lang,  Geo. 

699.  Larkins,  Peter 

658.  Leeker,  J.  F. 

521.  Lewis,  Jno. 

413.  Lincoln,  Jas. 

842.  Lofton,  Lewis 
1427.  McGee,  Jno. 
1377.  Marshall,  Henry 

609.  Martin,  Jackson 

526.  Maschmeier,  Geo. 
1210.  Maze,  Daniel 

504.  Mcllvanie,  Geo.  R. 

745.  Meier,  Henry 
1058.  Mestemacher,  Chas. 

440.  Meyer,  Henry  W. 

637.  Miller,  Wm. 
929.  Monroe,  Jos. 
822.  Maxev,  T. 

747.  Mueller,  Chas.  P. 


SESSINGHAUS    VS.    FEOST. 


385 


Record  page. 

Record 

page. 

468. 

McDowell,  John 

377. 

Taylor,  Edw. 

755. 

Ortman,  Christ. 

430. 

Taylor,  Jas. 

556. 

Osterwich,  Christ. 

600. 

Terrel,  Wm. 

692. 

Pawley,  Wm. 

691. 

Thomas,  Chas. 

871. 

Perry,  Bob 

676. 

Thompson,  J.  M. 

919. 

Pointer,  Edmund 

847  and  851.  Trebus,  Chas. 

1342. 

Post,  Chas. 

1839. 

Turner,  Frank 

641. 

Price,  C.  A. 

787. 

Turner,  Osbom 

1023. 

Profet,  Dan'l 

444. 

Tyler,  Albert 

1038. 

Eainiug,  Wm. 

586. 

Ulmer,  Peter 

1151. 

Ristelhuber,  A. 

1154. 

Yabl,  Fred. 

552. 

Ross,  Geo.                       * 

605. 

Volk,  Jacob 

776. 

Schalleu,  Frank 

875. 

Waschausen,  Aug. 

1149. 

Schueller,  Fred.,  sr. 

'      1672. 

Washington,  Robt. 

1150. 

Schueller,  Fred.,  jr. 

839. 

Washington,  Geo. 

490. 

Schottgeu,  P. 

852. 

Washington,  Wm. 

1205. 

Sawyer,  Jas. 

S85. 

W&bster,  Dan. 

482. 

Seibeltz,  Henry 

1501. 

Wesley,  Aleck 

734. 

Simms,  Henry 

425. 

White,  Lewis 

677. 

Shelton,  Abner 

890. 

Willard,  Dr.  Jno. 

1382. 

Smith,  David 

405. 

Williams,  Anthony 

580. 

Solari,  August 

835. 

Williams,  Chas. 

1003. 

Soler,  Chas. 

733. 

Williams,  Joe 

1376. 

Springer,  Wm. 

1078. 

Williams,  Thos. 

817. 

Stocko,  Fred. 

1087. 

Wilson,  Josiah 

1527. 

Stocktor,  Jas.  R. 

1184. 

Winter,  Heinrich 

655. 

Strack,  Matt 

943. 

Winther,  Chas.  T. 

654. 

Strader,  Beverly 

588. 

Williams,  Edw. 

547. 

Struve,  Henry 

992. 

Zieres,  Jno. 

1166. 

Talbot,  Henry 

Total,  155. 

We  find  further  that  the  board  of  revision,  by  whom  the  above  voters 
were  stricken  off  the  registration  list,  met  on  each  of  nine  days  imme- 
diately preceding  the  election,  the  first  day  only^  to  organize  and  pass 
the  following  resolution,  viz  : 

Resolved,  That  wheu  a  member  of  the  board  of  revision  presents  a  list  of  persons 
found  on  the  list  furnished  him  by  the  recorder  of  voters  with  dead,  removed,  not 
found,  vacant  house,  duplicate,  not  a  citizen,  or  any  other  word  or  phrase  to  indicate 
that  the  person  is  not  entitled  to  vote,  his  name  being  on  the  books  of  the  recorder,  the 
board  of  revision  shall  take  immediate  action  on  such  names  and  instruct  the  re- 
corder of  voters  to  etase  such  names  from  the  registered  list  of  voters  in  his  office. 

By  this  resolution  that  board  delegated  its  exclusive  power  to  each 
of  its  members,  and  in  advance  agreed  that  whatsoever  names  any 
of  its  members  presented  to  be  stricken  off,  should  be  stricken  off  with- 
out any  knowledge  or  testimony.  And  the  recorder  of  voters,  who  was 
ex  officio  clerk  of  that  board,  swears  that  the  business  was  done  as  fol- 
lows, viz : 

The  clerk  called  Ward  one ;  when  the  reviser  from  that  ward  sent 
up  a  list  of  names,  which  was  not  even  read,  the  clerk  merely  stating 
the  number  of  names  on  the  list,  when,  by  v^irtue  of  the  above  resolution, 
and  without  further  action  by  the  board,  they  were  stricken  off,  no 
other  member  of  the  board  but  he  from  the  First  ward  ever  hearing  the 
names  read  or  knowing  what  names  had  been  stricken  off ;  when  Ward 
two  was  called,  and  so  ou  through  the  whole  twenty-eight  wards  (Record, 
H.  Mis.  35 ^25 


386  DIGEST    OF   ELECTION    CASES. 

page  131).  This  was  also  proved  by  nearly  all  the  members  of  the 
board  called  by  the  contestee  as  witnesses  in  his  behalf.  (See  Record^ 
pages  1792,  1824,  1825,  and  1844.)  It  is  undisputed.  The  board  sat 
from  one  to  two  hours  each  of  the  eight  days,  and  in  that  time  struck 
off  over  12,000  names  from  a  registration  of  about  60,000. 

This  board  was  composed  of  twenty-four  Democrats  and  four  Repub- 
licans. The  record  shows  that  many  of  these  twenty-eight  revisers  dele- 
gated their  duties  of  purging  the  registry  lists  to  unauthorized  and  un- 
sworn parties— (Record,  1780-'?,  1793, 1800, 1836,  and  1850)— in  many  in- 
stances persons  wholly  unknown  to  them,  who  were  sent  to  them  by 
the  Democratic  central  committee.  (See  same  pages  of  the  Record.)  The 
fact  also  appears  that  the  reviser  for  the  Fourth  ward  of  this  district^ 
that  ward  in  which  most  of  the  above  disfranchised  voters  lived,  left 
his  entire  work  of  revision  to  irresponsible  deputies,  whose  work  was 
sent  in,  and  the  names  reported  by  them  were  stricken  from  the  list  of 
voters  in  the  manner  above  described. 

The  testimony  of  one  Michael  Burke  shows  that  he  Was  one  of  these 
unsworn  deputies,  and  reveals  the  frauds  by  which  Republicans  were 
intentionally  stricken  off  the  lists.  He  also  swears — and  his  evidence  is 
wholly  uncontradicted — that  there  was  an  understanding  and  agreement 
between  all  these  deputies — that  they  should  act  together  in  practicing 
these  frauds.     (See  Record,  page  71  and  following.) 

It  will  be  borne  in  mind  that  the  law  not  only  does  not  recognize  these 
deputies,  but  specifically  provides  that  this  work  of  determining  the 
qualifications  of  voters  should  be  done  by  these  revisers,  sitting  as  a 
court  and  acting  judicially  on  ^^ actuallcnowledge"  or  *^ competent  testi- 
mony, and  by  a  majority  voteP 

The  testimony  shows  that  all  of  the  above  155  men  were  legal  and 
qualified  voters,  many  of  them  being  old  residents,  and  that  they  did 
all  in  their  power  to  entitle  them  to  vote. 

We  hold  that  their  votes  should  now  be  counted  by  the  House.  The 
said  voters  had  done  everything  the  law  required  of  them  ;  they  had 
exhausted  their  remedy  ;  they  had  registered  and  gone  to  the  polls  and 
offered  to  vote,  bat  their  names  having  been  stricken  off'  they  were  not 
allowed  to  vote. 

The  principle  is  well  established  and  was  adopted  by  this  committee 
in  the  case  of  Bisbee  vs.  Fmley  (present  Congress),  that  where  judges 
of  election  improperly  refuse  a  qualified  voter  the  right  to  vote,  his 
vote  will  be  counted  here.  We  submit  the  reason  of  that  rule  will  ap- 
ply as  well  to  this  case,  where  the  voter  has  done  everything  in  his 
power  and  the  primary  wrongful  act  was  committed  by  the  registration 
officers. 

McCrary  on  Elections,  sections  10,  11,  and  383,  fully  sustains  this- 
view  in  the  following  language : 

A  case  may  occur  where  a  portion  of  the  legal  voters  have,  without  their  fault  and  in 
spite  of  due  diligence  on  their  part,  been  denied  the  privilege  of  registration.  In  sucb 
a  case,  if  the  voter  was  otherwise  qualified  and  is  clearly  shown  to  have  performed  all 
the  acts  required  of  him  by  the  law,  and  to  have  been  denied  registration  by  the 
wrongful  act  of  the  registering  officer,  it  would  seem  a  very  unjust  thing  to  deny  him 
the  right  to  vote.  In  elections  for  State  officers,  however,  under  a  constitution  or 
statute  which  imperatively  requires  registration  as  a  qualification  for  voting,  it  may 
be  that  the  voter's  only  remedy  would  be  found  in  an  action  against  the  registration 
officer  for  damages.     (See  also  sections  11  and  383.) 

It  will  be  observed  that  Judge  McGrary,  after  stating  the  general 
doctrine,  says  that— 

In  elections  for  State  officers,  however,  nnder  a  constitution  or  statute  which  imper- 


SKSSINGHAUS    VS.    FROST.  387 

atively  requires  registration  as  a  qualification  for  voting,  it  may  be  that  the  voter's 
only  remedy  would  be  found  in  an  action  against  the  registration  oflQcer, 

This  refers  exclusivelj^  to  State  officers,  while  the  office  for  which  it 
is  intended  to  count  these  votes  is  not  a  State  office — that  the  United 
States  Constitution  has  given  this  body  full  control  over  the  question 
&8  to  who  are  its  members ;  and  in  the  State  of  Missouri  neither  the  con- 
stitution or  any  statute  in  force  in  Saint  Louis  makes  registration  an 
imperative  prerequisite  or  qualification.  (See  constitution  1875,  here- , 
tof ore  cited.) 

The  old  constitution  of  1865  made  registration  a  qualification,  both  iu 
positive  and  negative  language.  (See  constitution  1865,  article  2,  sec- 
tion 4  and  18.) 

But  the  constitution  of  1875  only  requires  that  to  be  a  voter  a  man 
must  be  twenty-one  years  of  age,  a  citizen  of  the  United  States,  and  a 
resident  of  the  State  for  one  year. 

Neither  was  there  any  statute  in  existence  at  the  time  of  this  election 
which  applied  to  Saint  Louis,  which,  either  in  express  terms  or  by  im- 
plication, made  registration  an  imperative  prerequisite  or  qualification. 

The  charter  of  ordinances  of  the  city  of  Saint  Louis,  adopted  by  its 
citizens,  as  shown  above,  provided  for  a  system  of  registration  hereto- 
fore mentioned,  but  it  nowhere  in  express  terms,  in  enumeratiilfe  the  qual- 
ifications of  voters,  makes  registration  a  prerequisite  or  qualification  for 
voting,  and  had  it  done  so  we  hold  that  it  would  have  been  a  violation 
of  that  part  of  the  constitution  which  provides  for  the  qualifications  of 
voters,  in  this,  that  it  would  have  made  an  additional  qualification 
thereto. 

It  will  be  observed  that  as  Saint  Louis  never,  directly  or  by  impli- 
cation, elected  to  be  governed  by  the  statute  providing  for  the  govern- 
ment of  cities  of  the  first  class,  the  provisions  therein  concerning  regis- 
tration do  not  apply  to,  nor  do  they  control,  said  city.  * 

The  ordinance,  instead  of  the  charter  of  the  city,  being  followed  in 
the  matter  of  the  board  of  revision,  it  having  been  appointed  twenty 
instead  of  thirty  days  before  the  election,  we  find  that  neither  the 
charter  nor  statute  had  any  binding  effect  on  said  board. 

The  Constitution  of  the  United  States  having  declared  that  the  leg- 
islatures of  the  several  States  shall  provide  for  choosing  members  of 
Congress,  and  the  constitution  of  Missouri  having  authorized  the  gen- 
eral assembly,  and  that  alone,  to  enact  a  registration  law,  we  hold  that 
the  above  ordinance  has  no  binding  force  or  effect,  and  is  invalid. 

We  therefore  rely  upon  the  language  of  McCrary,  section  11,  that — 

In  the  absence  of  aDj  positive  law  making  registration  imperative  as  a  qualification 
for  voting,  it  is  a  very  plain  proposition  that  the  wrongful  refusal  of  a  registering 
officer  to  register  a  legal  voter  who  has  complied  with  the  law  and  applies  for  regis- 
tration ought  not  to  disfranchise  such  voter.  The  offer  to  register  in  such  a  case  is 
equivalent  to  registration.  This  would  be  held  to  be  the  law  upon  the  well-settled 
principle  that  the  offer  to  perform  an  act  which  depends  for  its  performance  upon  the 
action  of  another  person,  whp  wrongfully  refuses  to  act,  is  equivalent  to  its  perform- 
ance. 

But  conceding  (which  we  do  not  in  this  case)  that  the  city  ordinance 
relative  to  registration  was  constitutionally  and  legally  enacted,  and 
its  provisions  applicable  to  this  election,  we  contend  that  these  155 
votes  should  still  be  counted,  and  for  the  following  reasons : 

The  oath  prescribed  for,  and  taken  by,  the  judges  of  election  pre- 
cluded them  from  hearing  or  determining  the  case  of  any  voter  whose 
name  is  not  on  their  list ;  therefore,  as  to  that  class  of  voters,  they  are 
not  really  judges  of  election.  The  law  iu  that  case  has  provided  another 
set  i>f  judges,  whose  duty  it  is  to  hear  competent  testimony  concerning 


S8S  DIGEST  OF  ELECTION  CASES. 

the  case  of  each  and  every  man  whose  name  is  suggested  by  any  one 
should  be  stricken  off,  and  after  judicially  hearing  the  case,  they  shall, 
by  a  majority  vote,  determine  whether  that  man  is  a  voter  or  not. 

So  we  say  that  if  the  judges  of  election  could  not  receive  the  votes  of 
these  men  they  are  not  the  judges  of  their  qualifications  to  vote  in  any 
sense,  their  place  for  that  purpose  being  filled  by  the  board  of  revision. 
We  hence  conclude  that  if  the  only  officers  recognized  by  the  city  charter 
who  had  a  right  to  judge  of  the  qualifications  of  these  155  men  have 
improperly,  wrongfully,  and  fraudulently  denied  them  the  right  to  vote 
that  this  House  should  remedy  that  wrong  and  count  their  votes  for 
him  whose  name  was  on  their  ballots. 

Furthermore,  these  votes  should  be  counted  on  another  ground,  fol- 
lowing a  well-established  principle  of  law. 

The  proof  in  this  case  shows  that  the  board  of  revision  by  whom  the 
above  voters  were  disfranchised  acted  at  the  outset  and  throughout 
their  entire  proceedings  in  absolute  violation  of  not  only  the  spirit  but  the 
letter  of  the  law  which  gave  them  authority.  The  ordinance  explicitly 
says  that  this  board  shall  meet — 

For  the  purpose  of  examiuing  the  registration  and  making  and  noting  corrections 
therein  as  may  he  rendered  necessary  hy  either  their  knowledge  of  errors  committed 
or  hy  competipt  testimony  heard  before  the  board,  a  majority  of  said  board  shall  be 
necessary  to  do  business. 

By  a  resolution  adopted  at  the  beginning  (heretofore  cited)  they  de- 
clared they  would  neither  hear  testimony  nor  act  upon  the  knowledge  of 
the  board.  Thereafter  names  of  voters  were  stricken  off  the  list  with- 
out even  being  read  to  the  board,  and  merely  upon  the  recommenda- 
tion of  an  individual  member,  who,  in  many  cases,  as  the  proof  shows, 
adopted  without  question,  knowledge,  or  examination  the  reports  of  his 
unsworn  and  unauthorized  deputies. 

When  it  is  borne  in  mind  that  no  actual  notice  was  given  to  the  voter 
thus  stricken  from  the  list,  and  that,  even  if  he  had  such  notice,  there 
existed  no  remedy  or  law  by  which  he  could  be  reinstated,  the  necessity 
of  holding  this  board  to  a  strict  execution  of  its  powers  will  be  ap- 
parent. 

It  will  be  observed  that  the  ordinance  conferred  upon  the  board  of 
revision  the  power  to  examine  and  revise  the  registration  list  prepared 
by  the  recorder  of  voters,  and  making  and  noting  corrections  therein, 
to  correct  his  errors  or  omissions,  but  the  law  nowhere  empowered  them 
to  correct  or  revise  their  own. 

Now,  it  is  a  well-settled  doctrine  of  law  that  as  to  courts  not  of  record 
and  other  l)odies  having  judicial  functions  no  presumptions  arise  as  to 
jurisdiction  or  the  regularity  of  their  proceedings,  and  that  any  judg- 
ment rendered  by  such  court  or  body  not  in  strict  conformity  with  the 
law  is  void.     (See  Freeman  on  Judgments.) 

This  board  of  revision,  as  shown  by  the  record,  acted  from  the  begin- 
ning to  the  end  in  utter  disregard  and  violation  of  the  law. 

This  ordinance  gives  the  board  power  to  strike  from  the  registry  lists 
by  a  majority  vote,  and  either  on  the  knowledge  of  the  board  oflicially 
or  by  competent  testimony  heard  before  the  board,  the  names  of  those 
only  "  who  have  removed  from  the  election  district  for  which  they  reg- 
istered, or  who  have  died."  The  resolution  divested  the  board  of  all 
its  functions ;  it  gave  each  member  individually  the  right  to  not  only 
strike  off  the  deiid  and  removed,  but  it  gave  him  the  right  to  strike  off 
those  not  found  ;  it  gave  him  the  right  to  write  "  vacant  house"  against 
a  man's  name,  and  that  man  was  disfranchised;  it  gave  him  the 
right  to  strike  off"  dui^licate  names ;  it  gave  him  the  right  to  strike 


SESSINGHAUS   VS.    FROST.  389 

off  all  who  were  in  his  judgment  not  citizens ;  and,  lastly,  it  gave  him 
the  right  to  strike  off"  any  one  whom  he  thought,  for  any  reason,  ought 
not  to  vote — and  to  do  all  this  without  any  testimony,  without  any 
knowledge  as  to  whether  it  was  right,  and  without  any  notice  to 
him  whose  name  he  struck  off".  And  then  the  board  beforehand  sanc- 
tioned all  this ;  told  each  reviser  to  do  whatever  he  would ;  it,  as  a  board, 
would  stamp  it  as  the  act  of  the  board. 

It  will  be  seen  by  this  ordinance  that  this  board,  besides  striking  off 
the  names  of  those  who  had  removed  out  of  the  precinct  where  they 
lived  when  they  registered,  and  the  names  of  those  who  had  died,  were 
required  "to  note  the  fact  opposite  the  name  of  any  person  charged 
with  having  registered  in  a  wrong  name,  or  who,  for  any  reason,  is  not 
entitled  to  registration  under  the  provisions  of  this  ordinance,  which 
person  shall  be  challenged  by  the  judges  of  election  when  presenting* 
Inmself  to  vote,  and  rejected  unless  he  satisfy  said  judges  that  he  was 
entitled  to  register."  This  board  was  precluded  from  striking  off"  the 
names  of  these  jiersons.  Its  only  duty  was  to  make  note  against  them, 
and  then  the  judges  of  election  were  to  judicially  examine  into  the  quali- 
fications of  these  voters.  So  the  board  not  only  violated  and  defied  the 
law,  but,  by  its  acts,  it  prevented  the  judges  of  election  from  examin- 
ing and  determining  the  questions  which  the  ordinance  explicitly  re- 
ferred to  them.  If  this  board  had  been  a  court  of  general  jurisdiction, 
even  then  its  acts  would  have  been  absolutely  void  because  of  its  failure 
to  proceed  in  accordance  with  law. 

We  therefore  hold  that  the  action  of  this  board  in  striking  off  the 
names  of  the  above  voters  was  illegal  and  absolutely  void  and  of  the 
same  effect  as  if  done  by  any  unauthorized  party. 

Again,  the  proof  shows  that  the  action  of  the  board  of  revision  from 
its  inception  operated  as  a  fraud  upon  all  who  were  improperly  stricken 
off  by  them,  and  that  there  was  actual  fraud  on  the  part  of  some  of 
those  to  whom  was  improperly  delegated  the  duties  and  functions  of 
the  whole  board,  which  fraud  resulted  in  striking  oft"  and  disfranchise- 
ment of  these  voters. 

This  opportunity  for  fraud  is  evidenced  by  the  illegal  resolution 
adopted,  the  manner  in  which  the  board  did  its  work,  and  by  the  em- 
ployment of  unauthorized  and  unsworn  deputies. 

The  actual  fraud  is  shown  in  theuncontradicted  testimony  of  Michael 
Burke,  one  of  the  above  deputies  in  the  Fourth  ward  of  this  Congres- 
sional district,  who  uublushingly  tells  how  he  struck  oft*  of  the  list  Re- 
publican voters  ;  of  his  understanding  that  he  was  hired  for  that  purpose, 
and  agreement  with  other  deputies  to  do  the  same  work  in  their  wards; 
in  the  fact  that  of  the  12,000  names  stricken  off" — the  contestee  after 
keeping  in  a  conspicuous  place  in  the  leading  Democratic  paper  of  Sj. 
Louis  an  advertisement  for  all  Democrats  who  had  been  wrongfully 
stricken  from  the  registration  list  to  appear  and  give  their  testimony — 
only  obtained  three  who  were  quafified  voters ;  in  the  fact  that  in  nu- 
merous instances,  as  shown  by  the  testimony,  some  members  of  a  family 
were  stricken  off  said  list  and  members  of  the  same  taraily  left  on,  and 
in  each  of  such  instances  the  Republicans  were  stricken  off  and  the 
Democrats  left  on  ;  in  the  fact  that  five  months  after  the  election  herein, 
as  is  shown  by  the  testimony,  another  election  was  held  in  Saint  Louis, 
before  which  a  presumably  fair  registration  was  had,  and  at  which  every 
Republican  candidate  was  elected  by  a  very  large  majority,  whereas  at 
this  election  the  Democratic  candidates  for  President  and  governor  each 
received  a  majority. 


390 


DIGEST  OF  ELECTION  CASES. 


We  therefore  hold  that,  as  fraud  vitiates  all  things,  the  frauds  above 
enumerated  vitiated  the  action  of  said  board  of  revisers. 

For  each  and  all  these  reasons,  and  because  it  seems  just  and  right 
that  where  a  legally  qualified  voter  has  done  all  that  the  law  requires 
of  him  in  order  to  vote,  but  he  has  been  deprived  of  the  privilege  by 
the  default,  neglect,  or  fraud  of  any  officer  of  election,  his  vote  should 
be  counted,  and  because  it  seems  to  us  that  these  voters  were,  in  the 
eyes  of  the  law,  on  the  list  of  voters  furnished  the  judges  of  election 
(having  been  stricken  off  by  illegality  and  fraud),  we  hold  that  these 
155  votes  should  now  be  counted  for  contestant. 

U. 

The  evidence  shows  that  the  following  were  legal  voters  of  the  State 
of  Missouri  and  city  of  Saint  Louis,  and  entitled  to  vote  at  the  election 
in  the  third  Congressional  district  of  Missouri  on  the  2d  day  of  Novem- 
ber, 188U;  that  they  had  complied  with  the  registration  law  of  said  city, 
having  previous  to  the  election  registered  their  names  before  the  proper 
oflttcer;  that  on  the  day  of  election  they  offered  their  ballots  at  their  re- 
spective and  proper  polling  precincts  in  said  city,  and  said  ballots  being 
for  contestant  for  Representative  in  Congress  from  the  third  Congres- 
sional district  of  Missouri;  that  their  names  were,  each  and  every  one 
of  them,  found  on  the  poll-list  at  the  precincts  where  they  offered  to 
vote,  but  for  various  trivial  and  insignificant  reasons,  such  as,  for  in- 
stance, the  misspelling  of  names  or  the  incorrectness  of  numbers,  and, 
in  some  instances,  for  no  reasons  whatever,  the  judges  refused  to  re- 
ceive their  votes,  and  they  were  not  received  or  counted,  viz  : 


Record  page. 
420.  Baker,  Lee 
506.  Bierlin,  John 
834.  Buttram,  Louis 

1041.  Caeser,  Philip 

1032.  Cheatham,  William 
761.  Clark,  Calvin 
903.  Fields,  John 
518.  Garrett,  John 
816.  Geiger,  George  H. 
976.  Gray,  Samuel 
648.  Hatz,  Sebastear 
848.  Heitert,  H.  C. 

1240.  Henderson,  Isaac 
753.  Hensieck,  Henry 
591.  Hohnnan,  Fred. 
564.  Howard,  Henry 
771.  Humes,  Ben. 
570.  Hyde,  Jacob 


Record  page. 

1703.  Inderman,  Henry 
644.  Lammers,  Herman 
584.  Lott,  S.  W. 
663.  Merkel,  John 
661.  Moppel,  A.  F. 
573.  Moore,  London 
739.  Page,  Moses 
763.  Price,  John 
924.  Reed,  William 
765.  Rohne,  Herman 

1213.  Scott,  J.  E. 
497.  Small,  John,  jr. 
554.  Springmyer,  H. 
791.  Stoltz,  Matthew 
983.  Striker,  William 
915.  Twellman,  H. 
601.  Wischmeyer,  C.  H. 
Total,  35. 


We  therefore  conclude  that  these  thirty-five  votes  should  be  counted 
for  contestant,  as  the  proof  shows  indisputably  that  the  judges  of  elec- 
tion improperly  refused  to  receive  and  count  them. 

III. 

The  evidence  shows  that  at  the  date  of  election  herein  the  following 
were  legal  and  qualified  voters  of  the  State  of  Missouri,  city  of  Saint 


SESSINGHAUS    VS.    FROST. 


391 


Louis,  and  third  Congressional  district ;  that  they  had  never  registered 
and  voted  in  the  city  of  Saint  Louis ;  that  on  the  day  of  election  they 
were  registered  at  the  polls  of  their  respective  and  i)roper  precincts  by 
the  registering  officer  duly  appointed  for  that  purpose ;  that  they  offered 
their  ballots  for  contestant  for  Representative  in  Congress  from  the 
third  Congressional  district  of  Missouri,  but  the  judges  refused  to  re- 
ceive and  count  their  votes,  and  they  never  have  been  counted,  viz: 


Kecord  page. 

485.  Eggermau,  Chas. 

489.  Hagensiecker,  Henry 

864.  Braun,  T.  J. 
1203.  Kendall,  Alfred 

434.  Koester,  C.  H. 


Record  page. 

507.  Mohr,  Wm. 

497.  Springmeyer,  G. 
1133.  Stein,  John,  jr. 
Total,  8. 


And  for  the  reasons  assigned  above,  we  hold  that  these  ballots  should 
now  be  counted  for  contestant. 

IV. 

The  evidence  shows  that  the  following  were  at  the  date  of  the  elec- 
tion herein  legal  and  qualified  voters  of  the  State  of  Missouri  and  city 
of  Saint  Louis,  and  said  third  Congressional  district ;  that  they  never 
had  registered  or  voted  in  the  city  of  Saint  Louis ;  that  on  the  day  of 
election  they  offered  at  their  respective  and  proper  polling  precincts, 
and  before  the  officers  appointed  to  register  voters,  and  receive  and 
count  the  votes,  to  register  and  vote  for  contestant  for  Eepresentative 
in  Congress  for  the  third  Congressional  district  of  Missouri,  but  the 
officers  whose  duty  it  was  failed  and  refused  to.  register  them  or  to  re- 
ceive and  count  their  ballots,  and  their  ballots  were  not  received  and 
counted  by  the  judges  of  election,  and  they  never  have  been  counted : 


Record  page. 

516.  Arbuckle,  Lazarus 
1027.  Atkins,  Alex. 
1090.  Battell,  Lemuel 

767.  Beck,  Chas. 

474.  Belleville,  John 

888.  Bell,  Dempsey 

927.  Buckner,  James 

646.  Budehann,  Henry 
1237.  Burks,  Wm. 

486.  Brown,  Charles 
2671.  Caldwell,  Edward 

800.  Carter,  Harris. 
1237  and  2676.  Clark,  Jerry 
1135.  Combs,  Dave 
1037.  Cross,  Edward 

636.  Cummins,  Henry 
1390.  Davis,  Charles 
1282.  Day,  Wallace 
1111.  Dillard,  James 

523.  Duncan,  Jackson 
1257.  Edwards,  Jeff. 
1159.  Evans,  Henry 

808.  Franklin,  Henry 


Record  page. 

820.  Godejohu,  F.  W. 

487.  Johnson,  Joseph 
1281.  Gates,  Thos. 

465.  Greenlow,  Chas. 
1588.  Haines,  Wm. 

873.  BEarriss,  George 
1054.  Harriss,  Leighton 
1046.  Hawkins,  Dan'l 
1017.  Holmes,  Henry 

868.  Johnson,  Edward 

907.  Johnson,  James 
1529.  Johnson,  Jos.  B. 
1506.  Johnson,  Jos.  H. 

807.  Johnson,  Robert 

427.  Jones,  J.  J. 
1386.  Jones,  Joseph 

777.  Jackson,  Edward 
1212.  Jackson,  Samuel 

971.  Jay,  James 

696.  Johnson,  Charles 

553.  Kroeger,  Henry 
1049.  Lee,  Lewis 

432.  Link,  Frederick 


392 


DIGEST    OP    ELECTION   CASES. 


Record  page. 

1138.  Lyons,  Jerry 
844.  Mast,  Constantine 

1379.  McCoy,  Samuel 

1097.  McDavis,  Butler 
443.  Mitchell,  James 
781.  Mitcliell,  Geo. 

1075.  Mitchell,  Harrison 
643.  Mueller,  Gustave 
909.  Peterson,  Beverly 
542.  Pfeifer,  Adolph 

1086.  Polk,  James  K. 
828.  Powell,  Isaac 
865.  Price,  Bob 

1081.  Eiley,  Peter 

1062.  Eobinson,  Wm. 

1163.  Eobinson,  Sam. 
968.  Eandolph,  Alfred 
534.  Eedding,  T.  A. 
497.  Scott,  Sam. 
966.  Scott,  Sam. 

1094.  Simpson,  Hilliard 


Record  page. 

1646.  Sims,  Charles 

1067.  Smith,  John 

893.  Smith,  Joseph 
1252.  Taylor,  Clark 

720.  Taylor,  Eichard 

910.  Taylor,  Zachery 
1079.  Terrell,  Henry 
1085.  Thomas,  George 
1018.  Thomas,  George 

980.  Thomas,  Monroe 
1136.  Thomas,  Nelson 

877.  Turner,  Joseph 
1180.  Vogt,  Christ. 
1013.  Wallace,  Wm.  A. 
1705.  West,  William 
1279.  Wilkeson,  Thos. 
1276.  Gardener,  Chas. 

699.  Williams,  Wm. 

513.  Williams,  Wm. 
Total,  86. 


By  virtue  of  the  law  heretofore  referred  to,  providing  for  registratioa 
on  election  day,  and  upon  the  same  ground  as  leads  us  to  couut  the 
votes  of  those  wrongfully  stricken  from  the  list,  these  86  men  should 
have  been  registered  and  permitted  to  vote  ;  and  because  the  officers 
whose  duty  it  was  to  pass  upon  their  qualifications  wrongfully  and  ille- 
gally denied  them  their  right  of  suffrage,  and  because  the  said  voters 
had  done  all  that  the  law  required  of  them,  they  should  now  have  their 
votes  counted. 

V. 

At  pages  612,  668,  870,  674,  540,  759,  783,  620,  1157,  1228  of  the  Eec- 
ord  will  be  found  the  evidence  showing  that  there  were  23  ballots  cast 
for  contestant,  but  not  counted,  having  this  caption,  viz,  "  Chronicle 
Selected  Ticket,"  a  ticket  made  up  of  names  of  persons  on  both  the 
Eepublican  aud  Democratic  regular  tickets.  It  was  not  in  the  language 
of  the  law  (see  page  1681)  a  ticket  designed  to  deceive  the  voter.  It 
showed  plainly  what  it  was,  viz,  a  ticket  selected  by  the  Chronicle,  an 
independent  daily  newspaper  published  in  Saint  Louis  (see  pp.  945-'6). 
This  ticket  had  contestant's  name  on  it  for  Congress  from  this  district,. 
and  was,  in  some  of  the  precincts,  thrown  out  by  the  judges  and  not 
counted. 

The  supreme  court  of  Missouri,  in  the  case  of  Turner  vs.  Drake  (71 
Mo.,  285),  construed  this  statute  as  follows : 

This  is  a  proceeding  instituted  in  the  county  court  of  Carroll  County,  contesting; 
the  election  of  defendant  as  recorder  of  deeds  of  said  county.  The  county  court 
quashed  the  notice  of  contest  on  the  motion  of  defendant,  from  which  action  plaint- 
iff appealed  to  the  circuit  court,  where  upon  a  trial  de  novo  judgment  was  rendered  for 
defendant,  the  notice  of  contest  quashed,  and  the  proceedings  dismissoil,  from  which 
plaintiff  has  appealed  to  this  court. 

The  only  ground  for  contest  alleged  ia  the  notice  is  that  all  the  ballots  cast  for  de- 
fendant, at  the  election  which  was  held  on  the  5th  day  of  November,  1878,  ■wer& 
fraudulent  and  void,  because  the  caption  of  said  ballot  contained  the  words,  "  Re- 
publican, Independent,  Greenback."  The  following  is  the  form  of  the  ballot  as  to. 
State  and  county  officers :  "Republican,  Independent,  Greenback;  supreme  judge» 
Alexander  F.  Denney,"  &c. 


SESSINGHAUS    VS.    FROST.  393 

The  claim  that  the  hallots  cast  for  defendant,  of  which  the  foregoing  is  a  type,  wer& 
fraudulent  and  void,  is  based  upon  section  1,  acts  of  1875,  p.  15,  which  is  as  follows  t 

"  Each  ballot  may  bear  a  plain  written  or  printed  caption  thereon,  composed  of  not 
more  than  three  words,  expressing  its  political  character,  but  on  all  such  ballots  the 
said  caption  or  head-lines  shall  not  in  any  manner  be  designed  to  mislead  the  voter 
as  to  the  name  or  names  thereunder.  Any  ballot  not  conforming  to  the  provisions  oiT 
this  act  shall  be  considered  fraudulent,  and  the  same  shall  not  be  counted." 

We  cannot,  from  the  mere  face  of  the  ballot,  declare,  as  a  matter  of  law,  that  th& 
words  used  in  the  caption  were,  in  any  manner,  designed  to  mislead  the  voter  as  to- 
the  name  or  names  thereunder.  The  words  emdoyed  would  indicate  to  the  voter  that 
he  would  find  among  those  to  be  voted  for  Republicans,  Greenbackers,  and  Independ- 
ents, or  persons  who  were  candidates  without  party  indorsement.  We  think  the  evi- 
dent purpose  of  the  legislature  in  the  above  enactment  was  to  prevent  one  political 
party  from  using,  as  a  caption  to  its  ballots,  the  name  of  any  other  political  party  from 
that  mentioned  in  the  caption.  A  ballot  with  a  caption  using  the  words  "The  Repub- 
lican Ticket,"  which  contains  only  the  names  of  persons  who  represented  the  Demo- 
cratic ticket,  would  fall  within  the  class  of  ballots  intCBdicted  by  the  law. 

The  design  of  the  statute  is  to  prohibit  the  use  of  any  words  in  the  caption  to  a 
ballot  which  do  not  truly  indicate  the  political  character  or  party  aflBliation  of  the 
persons  to  be  voted  for,  and  any  ballot  which  represents  by  the  words  nsed  in  the 
caption  that  it  is  the  ticket  of  one  party,  when  in  truth  and  in  fact  the  persons  whose 
names  are  contained  in  the  body  of  the  ballot  repreflfent  another  and  different  party,, 
is  under  the  statute  fraudulent  and  void. 

Under  this  and  similar  decisions,  it  seems  to  us  there  can  be  no  doubt 
that  contestant  is  entitled  to  have  counted  for  him  these  23  votes. 

VI. 

Evidence  on  pages  952 and  897  of  the  Eecord,  which  is  uncontradicted^ 
will  be  found,  showing  that  10  votes  cast  for  contestant  were  thrown 
out  and  not  counted  by  the  judges,  merely  upon  the  ground  that  the 
contestant's  given  name  was  not  on  the  ballots.  The  proof  shows  that 
no  other  man  by  the  name  of  Sessiughaus  was  a  candidate  at  that  elec- 
tion in  that  district  for  any  ofiice. 

Hence  we  follow  the  unbroken  chain  of  authorities  as  cited  by  Mc- 
Crary,  and  hold  that  these  10  votes  should  be  counted  for  contestant. 

VII. 

At  one  i)recinct  in  the  said  district  it  appears  from  the  evidence  (page 
612,  of  Record),  there  were  cast  by  legally  qualified  voters  15  ballots 
having  the  caption  "  Greenback  Labor  Ticket,"  but  with  the  nominee 
of  that  party  for  Congress  scratched  out  in  pencil  and  the  name  of 
contestant  inserted,  none  of  which  ballots  were  counted  by  the  judges 
of  election. 

The  evidence  is  wholly  uncontradicted.  We  think  the  above  votes 
should  be  counted  for  contestant,  the  intention  of  the  voters  being  plain 
and  the  ballots  being  legal. 

VIII. 

In  precinct  148  the  testimony  shows  that  the  board  organized  under 
the  law  to  foot  up  returns  made  by  the  judges  of  election  counted  for 
contestant  141  and  contestee  58,  that  appearing  to  be  the  figures  on  the 
poll-book  of  that  precinct. 

The  undisputed  positive  testimony  of  a  majority  of  the  officers  of 
election  at  that  precinct  is  that  contestant  received  149  votes  and  con- 
testee 52,  and  that  those  were  the  figures  certified  to  and  returned  by 
the  judges.  The  contestee  called  no  witnesses  to  disprove  this  testi- 
mony, and  if  it  had  been  false  it  could  easily  have  been  shown.    W& 


394  DIGEST    OF    ELECTION   CASES. 

therefore  conclude  either  that  a  mistake  was  made  or  the  figures  were 
intentionally  changed  after  leaving  the  handsof  the  judges,  and  that  in 
•either  event  it  should  be  corrected.  This  adds  8  votes  to  contestant 
and  takes  6  from  contestee.  (See  Eecord,  pages  1748,  674-'5,  823,  and 
€68-'9.) 

IX. 

There  was  also  voted  at  that  election  a  ticket  headed  "  Hancock  In- 
<lependent  Ticket,"  upon  which  the  name  of  contestee  was  printed  but 
scratched  out,  and  contestant's  name  inserted  in  pencil.  This  ticket 
was  thrown  out  by  the  judges.  (See  pages  779  and  791.)  It  seems 
plain  that  it  should  be  counted  for  contestant. 

X. 

At  precinct  number  74  a  ballot  was  cast  (as  shown  by  the  evidence, 
page  985)  which  was  made  up  of  the  tickets  of  the  two  parties,  cut  in 
the  middle  and  pasted  together,  thus  making  a  complete  ticket  with 
only  one  name  thereon  for  each  office.  It  had  on  it  the  name  of  con- 
testant for  Congress.  This  ballot  was  thrown  out  and  not  counted  by 
the  judges.  We  think  it  should  be  counted  for  him.  The  voter  evi- 
<iently  knew  what  he  was  about,  and  it  was  his  privilege  to  vote  for 
•whom  he  pleased. 

XI. 

As  to  precinct  No.  39  the  contestant  urged  persistently,  and  intro- 
duced much  testimony  to  support  his  position,  that  this  precinct  should 
be  thrown  out ;  but  we  are  constrained  to  differ  with  him.  We  find 
that  the  evidence  of  intimidation  hardly  comes  up  to  the  standard  pro- 
vided by  the  precedents  cited  by  McOrary,  and  hence  we  conclude  that 
it  must  stand.  We  find,  however,  that  twenty  men  (all  colored)  who 
were  qualified  and  legal  voters,  and  duly  registered,  and  who  had  done 
all  that  the  law  required  of  them,  who  were  entitled  to  vote  at  that 
poll,  went  there  and  offered  to  vote,  but  were  refused  for  various  trivial 
reasons,  many  of  them  being  frightened  by  abuse  and  driven  from  the 
poll. 

The  following  is  a  list  of  the  above — all  of  whom  offered  to  vote  for 
contestant : 

Record  page.  Eecord  page. 

-368.  Adams,  Wm.  177.  Harris,  Walter. 

213.  Ashby,  Sanford  255.  Lee,  Wilson 

259.  Bailey,  Joseph  262.  Leland,  Geo. 

183.  Batten,  Alex.    ~  175.  Mack,  Stuart 

209.  Bell,  Joseph  372.  Meredith,  Henry 

264.  Bingham,  8.  S.  158.  Rollins,  Cain 

284.  Brown,  John  202.  Smith,  John 

508.  Brown,  Edward  360.  Thomas,  Ben. 

226.  Donan,  Wm.  367.  Williams,  Lewis 

^6.  Foster,  Chas.  139.  Windom,  Tom 
Total,  20. 

We  submit  that  the  above  should  be  counted  for  contestant. 


SESSINGHAUS   VS.    FROST.  395 

XII. 

It  is  admitted  by  contestee,  and  the  proof  is  positive  and  uncontra- 
dicted, that  a  minor,  Louis  Hain,  cast  his  vote  for  contestee,  and  that  it 
was  so  counted.  We  therefore  take  one  vote  from  contestee.(  See  Rec- 
ord, pages  1232  and  1754.) 

xni. 

As  to  the  charge  made  by  the  contestee  that  the  testimony  had  been 
mutilated  by  counsel  for  contestant,  we  say  that  there  is  not  the  slight- 
est ground  for  the  allegation.  (See  the  testimony  of  the  notary  who 
took  the  whole  testimony  in  the  case.  He  was  a  stenographer  as  well 
as  a  notary.)  •* 

By  Mr.  Miller  : 

Q.  How  long  have  you  been  a  short^hand  writer  ?-=-A.  I  began  the  stndy  of  short- 
hand in  the  fall  of  1868.  I  wrote  short-hand  for  the  Saint  Louis  Mutual  Life  Insur- 
ance Coucipany  from  1872,  continuing  from  that  time  (fh  tiU  I  got  into  the  business  of 
reporting. 

Q.  Before  you  forwarded  the  long-hand  notes  of  this  testimony  to  Washington,  did 
you  compare  each  sheet  of  it,  as  forwarded,  with  your  original  stenographic  notes  T — 
A.  Yes,  sir;  every  sheet. 

Q.  After  you  transcribed  the  short-hand  notes  of  the  testimony  of  contestant  into 
long-hand,  was  it  out  of  your  possession  and  in  the  possession  of  Mr.  Metcalfe  for  re- 
vision?— A.  I  will  have  to  explain  that,  for  the  simple  reason  that  I  did  not  write 
them.  My  agent,  of  course,  took  the  notes  from  me  and  wrote  them  out.  But  after 
the  transcript  came  back  into  my  hands,  and  after  I  made  the  examination  from  my 
notes,  page  after  page,  signed  and  sealed  each  day,  they  never  again  left  my  hands 
for  one  moment  until  they  got  into  the  House. 

Q.  That  is  the  transcript? — A.  The  transcript  of  my  short-hand  notes  taken  in  the 
case. 

Q.  After  the  transcript  had  been  made  by  you  or  your  agents,  you  permitted  it  to 
go  into  the  hands  of  Mr.  Metcalfe,  for  examination  ? — A.  Yes,  sir. 

Q.  Before  it  went  out  of  your  hand  and  into  Mr.  Metcalfe's  had  you  verified  the 
transcript  with  your  original  notes? — A.  No, sir;  I  had  not  even  opened  the  package. 

Q.  Much  of  the  transcript  had  been  made  by  clerks  working  under  you? — A.  Yes, 
sir. 

Q.  In  what  manner  and  by  whom  were  your  short-hand  notes  transcribed  into  long- 
hand ? — A.  At  the  close  of  every  session — every  day's  session — I  would  have  my  clerks 
waiting  for  me  in  my  office,  and  would  give  the  first  one  a  half  hour's  dictation  from 
my  short-hand  notes.  At  the  close  of  his  half  hour  I  would  make  a  check  of  my  notes, 
giving  the  name  of  the  clerk  next  following.  Then  the  next  clerk  would  take  his  half 
hour  of  that  same  day's  proceedings,  and  so  on  until  the  full  number  of  clerks  were 
at  work.  There  were,  I  think,  some  evenings  six  or  eight.  We  worked  frequently 
till  midnight,  until  completing  the  testimony  of  that  day — until  it  was  aU  dictated. 
They  took  it  in  short-hand  from  my  dictation  from  my  notes.  Then  they  took  it  to 
their  residences,  transcribed  it  at  their  leisure,  and  brought  it  back  to  my  office. 
There  it  passed  into  the  charge  of  one  of  my  brothers,  who  was  instructed  what  to  do 
with  these  different  parts.  He  would  take  the  first  half  hour,  the  second  half  hour,  the 
third  half  hour,  and  so  ou  till  the  close  of  all  the  witnesses  of  that  day,  place  them 
together,  number  the  pages,  and  tie  the  parcels  up  separately,  of  that  day's  proceed- 
ings, and  mark  it  on  the  outside.     And  so  it  went  on  through  the  entire  case. 

Q.  State  whether  the  original  short-hand  notes  taken  by  you  were  ever  out  of  your 
possession. — A.  No,  sir.     Any  short-hand  man  knows  what  that  means. 

Q.  (Interrupting.)  Wlien  they  came  back  to  you  from  Mr.  Metcalfe,  state  whether 
or  not  any  changes,  or  suggestions,  were  marked  on  any  of  them. — A.  There  were 
pencil  memorandums  on  some  of  them. 

Q.  State  whether  or  not  you  adopted  any  of  the  suggestions  contained  in  those  pen- 
cil memorandums. — A.  I  adopted  them  in  this  way:  There  were  blanks  in  those 
crude  transcripts  as  they  were  brought  back  by  my  clerks,  brought  about  by  their  in- 
ability to  read  their  notes.  Sometimes  there  were  whole  paragraphs  left  out.  Mr. 
Metcalfe  would  mark  in  his  suggestions,  this  name  here,  this  there ;  and,  of  course, 
when  I  came  to  the  corrections — when  I  got  these  sheets  back  and  made  my  correc- 
tion, in  reading  my  notes — where  my  notes  tallied  with  Mr.  Metcalfe's  suggestions  my 
notes  prevailed — no,  I  don't  mean  that  they  were  exactly  alike,  and  I  inserted  them, 
but  not  otherwise. 


396  DIGEST    OF    ELECTION    CASES. 

Q.  State  whether  or  not  the  testimony  had  been  attested  by  you  at  the  time  it 
passed  into  the  hands  of  Mr.  Metcalfe. — A.  It  was  not.  It  was  neither  signed  nor 
sealed.  It  had  never  been  in  my  iiossessiou  to  look  it  over  for  one  half  minute.  It 
passed  out  of  the  hands  of  my  clerks  into  the  hands  of  my  brother.  After  all  this 
was  done,  and  it  was  received  back,  I  made  my  corrections.  It  then  went  into  the 
box,  signed  and  sealed — went  on  to  the  House  of  Representatives.  It  was  never  seen 
by  anybody. 

Q.  State  whether  or  not  the  testimony,  as  finally  forwarded  to  the  House  by  you, 
corresponded  with  the  original  stenographic  notes  of  the  testimony  as  taken  from  the 
witnesses. — A.  It  did. 

Q.  When  did  you  attest  the  transcripts? — A.  I  attested  them  about  the  last  day  be^ 
fore  I  sent  them.  I  spent  one  whole  day  at  that  testimony.  I  allowed  that  to  be  the 
very  last  thing. 

We  think  this  testimoDy  absolutely  disposes  of  this  charge. 

RECAPITULATION. 

Vote  returned  for  contestant 9, 290 

Vote  returned  for  contestee 9, 487 

Add  to  contestant  those  improperly  stricken  off ; 155 

Add  to  contestant  those  on  poll-book  who  were  refused  by  judges 35 

Add  to  contestant  those  registered  at  polls,  but  votes  refused  by  judges.  8 

Add  to  contestant  those  who  offered  to  register  and  were  refused 86 

Add  to  contestant  "  Chronicle  tickets"  thrown  out 23 

Add  to  contestant  votes  cast  for  "  Sessiughaus"  thrown  out 10 

Add  to  contestant  Greenback-Labor  tickets  thrown  out 15 

Add  to  contestant  8  votes  by  reason  of  mistake  at  precinct  No.  148 8 

Deduct  from  contestee  6  votes  by  reason  of  said  mistake (> 

Add  to  contestant  Hancock  Independent  ticket  thrown  out ., 1 

Add  to  contestant  pasted  ballot  thrown  out 1 

9,632    9,481 

Add  to  contestant  votes  offered  and  refused  at  precinct  No.  39 20 

Deduct  from  contestee  minor's  vote 1 

9,652    9,480 
Majority  for  contestant,  172. 

We  therefore  recommend  the  adoption  of  the  following  resolutions : 

I.  Resolved,  That  E.  Graham  Frost  was  not  elected  as  a  Representa- 
tive to  the  Forty-seventh  Congress  of  the  United  States  from  the  third 
Congressional  district  of  Missouri,  and  is  not  entitled  to  occupy  a  seat 
in  this  House  as  such. 

II.  Resolved,  That  Gustavus  Sessinghaus  was  duly  elected  as  a  Repre- 
sentative from  the  third  Congressional  district  of  Missouri  to  the  Forty- 
seventh  Congress  of  the  United  States,  and  is  entitled  to  his  seat  as 
such. 


VIEWS    OF    MR.     A.     A.     RANNEY, 
AS  EXPRESSED  IN  COMMITTEE. 

At  the  request  of  the  member  of  the  committee  reporting  this  case, 
Mr.  Ranney  furnished  him  with  a  copj'  of  his  views  submitted  to  the  full 
committee,  and  which  governed  him  in  voting  in  the  committee  to  award 
the  seat  to  Mr.  Sessinghaus.  They  state  the  law  applicable  to  this  case 
so  succinctly  that  we  append  them : 

I  have  examined,  with  as  much  care  as  able,  both  the  report  of  the 
subcommittee  and  the  arguments  made  by  the  respective  counsel  upon 
the  special  legal  question  ordered  by  the  committee  to  be  reargued. 


SESSINGHAUS    VS.    FROST.  397 

Knowing  that  the  subcommittee  has  examined  the  questions  of  fact 
with  great  thoroughness  and  care,  [  am  disposed  to  adopt  their  conclu- 
sions upon  them.  I  have,  however,  examined  the  evidence  and  heard 
the  arguments  upon  the  material  issues  of  fact  so  far  as  to  satisfy  myself 
of  the  justice  of  those  conclusions.  It  appears  to  me  that  aside  from 
tlie  questions  of  law  urged  as  to  the  validity  of  the  city  ordinances  re- 
lating to  registration  of  electors,  and  on  the  assumption  that  they  are 
authorized  and  valid  under  the  Constitution  of  the  United  States  and  the 
constitution  and  laws  of  the  State  of  Missouri,  that  the  conduct  of  the 
official  board  of  the  city  intrusted  with  the  duty  of  revising  the  regis- 
tration list  were  guilty  of  bad  faith  and  of  gross  negligence  at  least, 
amounting  to  fraud,  and  even  of  actual  fraud,  in  striking  off  most  if 
not  all  of  the  names  in  question,  who  were  thereby  deprived  of  the 
privilege  of  casting  votes  for  contestant,  as  they  were  ready  and  offered 
to  do.  It  was  such  as  to  vitiate  their  whole  action  in  that  regard.  And 
I  therefore  believe  that  the  votes  of  all  electors  whose  names  were  thus 
stricken  off,  and  who  appeared  and  offered  to  yote  for  contestant,  should 
be  counted  for  him. 

Had  the  board  acted  fairly  and  impartially,  and  only  erred  in  the  ex- 
ercise of  an  honest  judgment,  I  should  not  be  willing  to  go  behind  the 
registration  list  as  prepared  and  left  by  them.  The  authority  to  strike 
off  names  already  registered  is  limited  any  way  to  those  who  had  died 
or  removed. 

In  the  view  taken  upon  the  point  stated,  it  is  unnecessary  to  go  into 
the  legal  questions  argued  and  referred  to.  I  should  ordinarilj'  hesitate 
long,  and  deliberate  with  care,  lest  I  might  be  mistaken,  before  I  could 
decide  against  the  validity  of  the  city  ordinances  in  question  and  under 
which  the  board  of  registration  seem  to  have  acted,  and  which  have 
been  apparently  in  force  and  acted  upon  in  the  city  and  State  so  long. 
But  the  question  is  raised  and  argued  on  both  sides  with  great  ability. 
And  I  am  forced  to  the  conclusion  that  the  acts  of  the  board  in  striking 
oft'  the  names  of  the  parties  in  question  was  unauthorized,  illegal,  and 
void ;  that  under  the  Constitution  of  the  United  States,  article  1,  sec- 
tion 4,  the  State  legislature  alone  had  power  to  prescribe  the  manner 
of  holding  elections,  subject  to  alteration  and  regulations  made  by 
Congress.  That  this  power  includes  the  whole  machinery  of  elections, 
registration  laws,  «&c.,  is  too  well  settled  to  require  argument. 

I  am  unable  to  lind  any  act  of  the  legislature  of  Missouri  which  pre- 
scribes registration  as  a  qualification  or  regulation,  and  which  was  in 
force  at  the  time  in  question  and  applicable  to  the  city  of  Saint  Louis. 
Apparently  the  legislature  recognized  this  as  the  state  of  the  law,  and 
accordingly,  as  appears  in  the  argument,  passed  an  act  to  remedy  the 
defect  and  provide  for  it  ill  the  year  1881.  The  charter  of  the  city 
of  Saint  Louis  must  be  confined  in  its  provisions  to  matters  municipal, 
and  it  would  be  a  great  stretch  of  language  and  principles  of  law  to 
hold  that  it  extended  beyond  that  and  embraced  authority  to  regulate 
the  manner  of  holding  elections  in  matters,  of  State  and  Federal  offi- 
cers, so  the  city  authorities  could  establish  registration  laws  and  pre- 
scribe the  qualifications  of  voters  aud  limit  the  right  of  exercising  the 
elective  franchise.  It  is  more  than  doubtful  whether  the  legislature, 
which  is  alone  invested  with  authority  of  this  kind,  could  thus  delegate 
it  any  way.  I  do  not  propose  to  go  into  a  more  minute  and  elaborate 
discussion  of  the  point.    My  conclusion  is  that  contestant  was  elected. 


398  DIGEST    OF   ELECTION   CASES. 

Mr.  Miller,  from  the  Committee  on  Elections,  submits  the  followin  g 

SUPPLEMENTARY   REPORT 
IN  THE  ELECTION  CASE  OF  SESSINGHAUS  vs.  FROST  : 

In  reporting  the  views  of  Mr.  Ranney,  as  expressed  in  committee, 
there  were  certain  errors  in  the  statement  of  them.  They,  as  ap- 
pended to  the  report  made,  are  hereby  corrected  so  as  to  read  as  fol- 
lows, viz : 

VIEWS  OF  MR.   A.  A.  RANNEY,  AS  EXPRESSED  IN   COMMITTEE. 

[At  the  request  of  the  member  of  the  committee  reporting  this  case^ 
Mr.  Eanney  furnished  him  with  a  copy  of  his  views  submitted  to  the 
fall  committee,  and  which  governed  him  in  voting  in  the  committee  to 
award  the  seat  to  Mr.  Sessinghaus.  They  state  the  law  applicable  to 
this  case  so  succinctly  that  we  append  them  :] 

I  have  examined,  with  as  much  care  as  able,  both  the  report  of  the 
subcommittee  and  the  arguments  made  by  the  respective  counsel  upon 
the  special  legal  question  ordered  by  the  committee  to  be  reargued. 

Knowing  that  the  subcommittee  has  examined  the  questions  of  fact 
with  great  thoroughness  and  care,  I  am  disposed  to  adopt  their  conclu- 
sions upon  them.  I  have,  however,  examined  the  evidence  and  heard 
the  arguments  upon  the  material  issues  of  fact  so  far  as  to  satisfy  myself 
of  the  justice  of  those  conclusions.  It  appears  to  me,  aside  from  the 
questions  of  law  involved,  that  the  ofl&cial  board  intrusted  with  the 
duty  of  revising  the  registration  lists  were  guilty  of  fraud,  or  a  viola- 
tion of  duty  equivalent  to  fraud  in  its  operation,  in  the  action  taken, 
and  that  their  deputies  and  agents,  for  whose  conduct  they  were  re- 
sponsible, practiced  actual  fraud,  and  that  this  vitiates  what  was  done 
in  the  premises  in  striking  off  the  names  of  persons  previously  regis- 
tered and  who  were  still  alive  and  had  not  removed. 

Had  the  board  acted  fairly  and  impartially,  and  only  erred  in  the  ex- 
ercise of  an  honest  judgment  and  under  competent  authority,  I  should 
not  be  willing  to  go  behind  the  registration  list  as  revised  and  left  by 
them. 

In  the  view  taken  upon  the  point  of  law  stated,  it  is  unnecessary 
to  go  into  the  legal  questions  argued  and  referred  to.  I  should  ordina- 
rily hesitate  long  and  deliberate  with  care,  lest  I  might  be  mistaken, 
before  I  could  decide  against  the  validity  of  the  city  ordinances  in  ques- 
tion and  under  which  the  board  of  registration  seem  to  have  acted,  and 
which  have  been  apparently  in  force  and  acted  upon  in  the  city  and 
State  so  long.  But  the  question  is  raised  and  has  been  argued  on  both 
sides  with  great  ability.  And  I  am  forced  to  the  conclusion  that  the 
action  of  the  board  in  striking  off  the  names  of  the  parties  in  question 
was  unauthorized,  illegal,  and  void  5  that  under  the  Constitution  of  the 
United  States,  article  1,  section  4,  t^e  State  legislature  alone  had  power 
to  prescribe  the  manner  of  holding  elections,  subject  to  alteration  and 
regulations  made  by  Congress.  That  this  power  includes  the  whole 
machinery  of  elections,  registration  laws,  &c.,  is  too  well  settled  to  re- 
quire argument. 

I  am  unable  to  find  any  act  of  the  legislature  of  Missouri  which  pre- 
scribes registration  as  a  qualification  or  regulation,  and  which  was  in 
force  at  the  time  in  question  and  applicable  to  the  city  of  Saint  Louis^ 


SESSINGHAUS    VS.    FROST.  399 

Apparently,  the  legislature  recognized  this  as  the  state  of  the  law,  and 
accordingly,  as  appears  in  the  argument,  passed  an  act  to  remedy  the 
defect  and  provide  for  it  in  the  year  1881.  The  charter  of  the  city  of 
Saint  Louis  must  be  confined  in  its  provisions  to  matters  municipaL 
and  it  cannot  be  held  to  extend  beyond  that.  It  is  more  than  doubtful 
whether  the  legislature,  which  is  alone  invested  with  authority  of  this- 
kind,  could  thus  delegate  it  any  way. 

It  would  seem,  in  any  event,  that  the  authority  to  strike  off  namcB^ 
already  registered  was  limited  to  those  persons  who  had  either  died  or 
removed.  But  the  board  went  beyond  this,  and  did  not  proceed  accord- 
ing to  law  and  by  fair  and  legal  means  to  ascertain  and  determine  what 
was  intrusted  to  them. 


Mr.  MouLTON,  from  the  Committee  on  Elections,  submitted  the  follow- 
ing as  the  *  • 

VIEWS    OF   THE  MINORITY: 
I. 

The  first  question  presented  by  the  record  in  this  cause  is  a  motion  to 
suppress  the  depositions  taken  for  contestant. 

The  motion  and  the  affidavits  will  be  found  on  pages  12, 13,  14,  15, 
16,  17,  18,  19,  20,  21,  22,  23,  24,  and  25  of  the  Record,  and  are  printed 
and  attached  to  this  report  as  an  addenda. 

This  motion  was  before  the  full  committee  in  the  month  of  January^ 
1882,  and  as  the  testimony  was  not  then  in  print  the  motion  was  passed 
upon  "  without  prejudice,"  leaving  the  question  to  be  investigated  and 
decided  after  the  depositions  and  all  papers  pertaining  to  the  motion 
to  suppress  should  be  printed. 

The  gist  of  the  motion  is  stated  in  the  fourth  ground,  which  is  as  fol- 
lows (page  13) : 

IV.  That  all  of  said  depositions  since  the  taking  thereof  have  heen  withdrawn 
from  the  care  of  the  notary  by  one  of  the  counsel  for  contestant,  and  were  in  his. 
office  part  for  many  days  and  part  for  many  weeks,  and  were  by  him  mutilat«d^ 
changed,  and  altered. 

It  is  quite  clear  that  the  law  is  scrupulously  particular  in  demanding^ 
that  the  spotless  integrity  of  depositions  shall  be  preserved.  It  i» 
sensitive  to  the  highest  degree  in  considering  a  complaint  such  as  we 
find  here.  Even  in  mere  matters  of  form  it  demands  the  most  exact 
compliance  with  such  formalities  as  the  various  statutes  may  require. 

We  cite  a  few  cases  in  which  motions  to  suppress  depositions  were 
sustained  where  mere  formal  rules  were  disobeyed : 

2.  Washington  Circuit  Court  Report,  p.  356 :  "  A  commission  which  had  been  exe- 
cuted and  returned  was  set  aside  because  it  had  been  opened  by  one  of  the  officers 
of  the  government  before  it  came  into  th)  hands  of  the  clerk."  (United  States  vs. 
Price's  Administrator.) 

Shankwiker  vs.  A.  Reading  (4  McLean's  Reports,  p.  240)  :  "  The  law  requires  the 
deposition  taken  under  act  of  Congress  to  be  retained  by  the  officer  until  he  deliver  the 
same  into  coui;t,  or  shall,  together  with  a  certificate  of  the  reasons  for  taking  it,"  «&c. 

Read  rs.  Thompson  (8  Cranch,  70 — J.  Story):  "Independently  of  all  other  grounds, 
the  court  are  of  the  opinion  that  the  fact  of  the  depositions  not  having  been  opened 
in  court  is  a  fatal  objection." 

1  Brown's  Admiralty  Reports,  p.  66:  "Though  a  deposition  be  taken  under  a  stip- 
ulation, waiving  all  objections  as  to  the  form  and  manner  of  taking,  it  must  still  be 
returned  to  court  in  all  respects  as  required  by  law. 


400  DIGEST    OF    ELECTION    CASES. 

The  charge  of  the  motion,  however,  goes  not  only  to  form,  but  to  sub- 
stance, and  claims  that  the  worst  of  bad  faith  was  exhibited  by  the  at- 
torney of  the  party  in  whose  interest  the  depositions  were  taken.  The 
court  in  Beverly  vs.  Burke  (14  Georgia,  70),  says : 

In  deciding  as  we  do  we  establish  no  new  rule.  We  hold  that  the  case  presented 
to  us  falls  within  a  rule  already  well  settled,  and  that  rule  simply  is  that  there  must 
be  no  circumstances  of  unfair  advantage  obtained  by  one  party  over  the  other  in  hav- 
ing testimony  taken  by  depositions.  »  •  »  Many  written  cases  may  be  found  in 
which  it  has'  been  held  that  such  depositions  should  always  be  taken  in  good  faith. 
I  content  myself  with  referring  to  but  one.  In  Beau  rs.  Quinby,  5  New  Hampshire,  98, 
the  court  says,  "  The  invariable  rule  by  which  this  court  is  governed  in  the  admission  of 
■depositions  is  not  to  receive  any  which  have  not  been  taken  fairly  and  with  the  utmost 
^ood  faith. 

It  appears  from  the  affidavits  in  the  Kecord  (pages  13  and  15)  that 
counsel  for  contestee  having  heard  that  one  of  the  attorneys  for  con- 
testant had  obtained  and  manipulated  the  depositions  resolved  to  ask 
him  if  the  information  was  true  that  he  had  obtained  the  depositions 
from  the  notary. 

The  answer  of  the  attorney  was,  "  Oh,  no  j  I  did  not  have  the  testi- 
mony ;  I  had  only  my  depositions  of  one  day,  and  that  was  the  day  the 
city  ordinances  were  introduced ;  I  wanted  to  see  if  they  were  reported 
correctly." 

The  question  that  was  asked  was  by  one  who  had  the  right  to  ask 
it,  and  it  demanded  a  full  and  fair  answer.  The  good  faith  required  in 
the  taking  of  depositions  demanded  even  more  than  this. 

Papers  of  such  importance  should  never  leave  the  custody  of  the  of- 
ficer without  the  full  knowledge  and  consent  of  both  parties. 

Here  not  only  was  there  no  such  consent  given  by  counsel  for  con- 
testee, but  he  had  not  even  the  slightest  intimation  that  the  notary  had 
parted  with  the  depositions.  Both  the  notary  and  the  attorney  to  whom 
he  gave  the  depositions  carefully  concealed  from  him  all  information  as 
to  the  truth  of  the  facts,  although  in  response  to  the  direct  inquiry  of 
counsel  for  contestee,  pages  13  and  14,  the  attorney  made  answer,  "  Oh, 
no ;  I  did  not  have  the  testimony ;  I  had  only  my  depositions  of  one 
day,  &c.,  yet  on  pages  15  and  16  we  find  these  letters. 

Exhibit  A. 

St.  Louis,  Aug.  4, 1881. 
Frank  Kraft,  Esq.,  or  his  brother  : 

I  have  just  returned  from  the  North,  and  want  more  manuscript  to  work  up.  I 
return  by  messenger  the  testimony  taken  Feb.  1st,  2d,  and  3d. 

Please* send  me  by  bearer  (or,  if  you  are  not  at  home,  by  messenger,  as  soon  aa  pos- 
sible) the  testimony  for  six  or  eight  days  following  the  3d  of  Feb.   I  don't  know  what 
dates  they  may  be,  for  a  Sunday  probably  intervenes.     I  guess  you  had  better  send 
me  8  days'  testimony,  for  I  want  to  work  pretty  steady  on  it  now. 
Yours,  truly, 

L.  S.  METCALFE,  Jr. 

Exhibit  B. 

St.  Louis,  Aug.  8,  1881. 

Mr.  Craft: 

Dear  Sir:  I  return  you  testimony  taken  Feb.  4th  and  5th.  I  want  to  retain  that 
for  Feb.  7th  for  a  few  days,  as  I  have  a  copyist  at  work  copying  names  from  it.  Will 
return  it  when  I  return  next  batch.  Please  send  me  testimony  for  at  least  six  days, 
and,  if  you  can,  eight  days.  I  finish  it  up  so  fast  that  it  will  keep  me  seudiug  all  the 
time,  and  oblige — 
Yours,  truly, 

L.  S.  METCALFE,  Jr. 


SESSINGHAUS    VS.    FROST.  401 

Exhibit  C. 

St.  Louis,  Aug.  18, 1881. 
Mr.  CuAFT  :  I  sendyou  by  messenger  the  testimony  taken  Feb.  7, 8,  9,  10, 11,  and  12. 
That  is  all  I  have  received,  except  that  for  Feb.  14.  The  latter  I  am  on,  and  will  re- 
tain uutil  I  returu  next  batch.  Please  send  by  bearer,  or  as  soon  thereafter  as  pos- 
sible, testimony  for  the  following  eight  or  nine  days ;  that  is,  Feb.  15,  16,  17,  18,  19, 
21,  22,  and  23  ;  and  oblige — 
Yours,  truly, 

METCALFE. 
When  does  Frank  return  f 

The  facts  here  stated  are  so  thoroughly  established  that  no  attempt 
even  has  been  made  to  dispute  them. 

They  appear  to  us,  in  considering  a  question  such  as  is  before  us,  to 
be  of  fatal  importance  to  this  controversy. 

But  the  affidavits  supporting  this  motion  go  farther.  It  appears  that 
the  attorney  not  only  had  possession  of  all  of  the  depositions,  but  he 
wrote  on  them. 

In  his  own  affidavit,  in  speaking  of  the  writing  proved  to  have  been 
made  by  him,  he  says  he  "  merely  made  marginal  suggestions  "  (page 
21). 

These  "  mere  marginal  suggestions  "  were  in  the  matter  of  names  and 
localities,  which  in  this,  as  in  most  Congressional  contests,  constitute  a 
very  important  issue. 

If  the  "  marginal  suggestion  "  was  left  unheeded  that  fact  might  have 
lessened  the  alarm  which  sach  manipulation  of  the  depositions  created, 
but  the  direction  given  by  the  attorney  in  his  "marginal  suggestions" 
was  invariably  and  bliudly  followed  by  the  notary,  as  appears  from  his 
final  affidavit  (page  25). 

Lyne  S.  Metcalfe,  jr.,  importuned  me  to  let  him  have  the  testimony  itself,  as  tran- 
scribed, and  I  did  give  him  possession  of  it  for  review  and  correction  of  the  spelling 
of  proper  names.  I  trusted  to  his  integrity  to  write  correctly  the  names  of  per- 
sons and  localities  as  given  by  the  witnesses.  I  could  rely  on  my  notes  of  testimony 
in  all  refipects  bat  this,  and  hence  I  took  Metcalfe's  written  suggestions,  believing 
when  I  adopted  them  I  was  giving  names  and  localities  as  they  were  given  by  the 
witnesses  on  the  stand. 

The  notary  swears  that  he  could  rely  on  his  notes  of  testimony  in  all 
respects  but  those  in  which  the  attorney  was  permitted  to  direct 
changes. 

Without  submitting  these  changes  to  the  attorney  for  contestee,  or 
suggesting  that  any  are  to  be  made  or  any  have  been  suggested,  he 
changes  in  every  instance  the  testimony  as  written  to  conform  to  the 
ex  parte  "  marginal  suggestion." 

It  appears  to  us  that  the  notary  in  the  counter-affidavits  cannot  swear 
that  the  testimony  transmitted  is  the  testimony  as  given,  when  he  also 
swears  that  he  could  not  rel^'  on  his  notes  of  testimony  in  the  very  vital 
matters  he  made  changes  at  the  attorney's  ex  parte  request. 

The  subcommittee  in  January  appointed  a  committee,  consisting  of 
Davis,  of  Missouri,  and  Ritchie,  of  Ohio,  to  examine  the  depositions  to 
ascertain  if  it  was  a  fact  that  contestant's  attorney  had  written  upon 
them  and  made  changes,  as  charged. 

Each  took  a  portion  of  the  very  voluminous  depositions,  and  found 
the  fact  to  be  true  that  he  had  written  upon  them. 

Mr.  Davis,  in  a  hurried  examination,  found  over  one  hundred  in- 
stances of  Metcalfe's  marginal  writings,  and  in  each  and  every  instance 
the  body  of  the  testimony  was  altered  to  conform  to  the  marginal  di- 
rection. 

H.  Mis.  35 26 


402  DIGEST    OF    ELECTION    CASES. 

While  it  would  thus  appear  that  the  attorney  had  not^ith  his  own 
hand  changed  and  altered  the  testimony  as  written,  yet  inasmuch  as 
the  notary  did  it  at  his  dictation,  confessing  he  relied  on  "  marginal 
suggestions  "  more  than  his  notes  of  the  testimony,  we  cannot  api)reciate 
any  substantial  distinction  to  be  drawn  that  will  excuse  the  alteration. 

The  attorney  at  his  pleasure  made  the  changes  in  the  body  of  the 
testimony,  using  the  hand  of  the  notary,  who  confesses  he  relied  more 
upon  what  the  attorney  had  written  than  what  he  himself  had  written. 
He  could  not  rely  on  his  notes. 

The  law  does  not  permit  depositions  to  be  drawn  by  any  attorney 
interested  in  a  cause.  The  reason  of  the  rule  is  well  stated  in  these 
cases  following  a  special  statute : 

Harst  &  Co.  i'«.  Larpim  (21  Iowa,  p.  484,  Lowe,C.  J.)i  appeal  from  the  order  of  the 
court  suppressing  certain  depositions  for  the  reason  that  they  had  heen  written  by 
the  counsel  for  the  party  in  whose  favor  they  were  to  be  read  as  testimony,  iufiteadof 
it«  being  done  by  the  commissioner  designated  in  the  notice.  The  objection  was  well 
made  and  properly  sustained,  and  that,  too,  without  the  slightest  imputation  «m  the 
counsel  who  officiated  as  scribe.  It  was  simply  a  legal  impropriety  which  it  was 
competent  for  the  court  to  correct  and  enforce  by  rule,  if  need  be.  The  notary  is 
supposed  to  stand  at  all  times  iudifterent  to  the  parties,  whilst  the  lawyer,  having 
made  himself  a  partisan, is  sufficient  to  feel  a  bias  in  favor  of  his  client.  Shonld  he  act 
as  scrivener  in  taking  and  in  after  reading  it  over  himself  to  the  witness  for  correction 
or  approval,  contrary,  as  we  think,  to  the  spirit  of  the  statute,  however  honestly  done, 
it  would  nevertheless  subject  him  to  criticism  and  suspicion.  To  relieve  him  of  this 
left-handed  compliment  we  hold  the  coiirt  did  not  err  in  suppressing  depositions. 

Again,  in  Allen  vs.  Rand  (5  Conn.,  522): 

The  law  will  not  trust  an  agent  to  draw  up  a  deposition  for  his  principal,  as  by  the 
insertion  of  a  word  the  meaning  of  which  is  not  correctly  understood,  or  by  the  omis- 
sion of  a  fact  that  ought  to  be  inscribed,  the  testimony  thus  garbled  and  discolored 
will  be  false  and  deceptive.  Nor  is  there  a  possible  argument  in  favor  of  such  a  pro- 
ceeding. 

The  statute  even  when  strictly  construed  is  sufficiently  lax,  when  ex  parte  deposi- 
tions are  taken  at  least,  not  uufrequently  to  admit  of  the  poisoning  of  justice  in  the 
very  foundations,  for  if  the  evidence  is  untrue  or  partial  the  result  can  never  be  con- 
formable to  right.  *  *  *  As  the  witness  ought  to  be  disinterested,  so  must  the 
evidence  be  impartial,  comprising  the  whole  truth,  as  well  as  nothing  but  the  truth, 
and  that  never  can  be  rationally  expected  when  a  deposition  is  drawn  up  by  an  attor- 
ney or  agent.     *     *     * 

It  is  much  preferable  that  in  x>articular  instances  the  party  should  even  be  deprived 
of  testimony  than  a  principle  leading  to  widesi»read  mischief  should  be  adopted.  It 
is  true  that  an  agent  may  draw  up  a  dejjosition  impartially,  and  there  is  no  reason  to 
doubt  that  the  young  lady  in  the  case  acted  with  the  most  delicate  iutegrity.  But  the 
statute  was  made  in  contravention  of  wrong  and  intends  not  in  any  case  to  place 
confidence  where  it  may  be  abused. 

Such  are  reasons  given  for  the  rule  in  cases  where,  in  the  language  of 
the  court,  "  there  is  no  reason  to  doubt  that  the  young  lady^  in  the  case 
acted  with  the  most  delicate  integrity.' 

But  this  case  is  broader,  and  shows  that  the  same  disposition  and  the 
same  delicacy  which  the  court  attributes  to  the  party  in  that  case,  in 
which  the  depositions  were  suppressed,  cannot,  under  the  aflSdavit  of 
the  notary  in  this  case,  be  given  to  the  attorney  who  wrote  the  "  marginal 
suggestions." 

On  page  18  the  notary,  speaking  of  alterations  in  the  testimony  of 
a  witness  who  was  testifying  to  character,  says : 

When  that  witness  was  yet  in  the  room,  after  giving  his  testimony,  counselfor  con- 
testant requested  of  me,  as  did  also  the  witness,  to  leave  oiit  such  profanity,  but  counsel 
for  the  contestee  positively  refused  to  allow  this.  I  then  stated  to  the  witness  that  I 
would  not  write  the  objectionable  words  in  full,  but  would  simply  indicate  them,  and 
in  this  manner  they  appeared  In  my  manuscript.  I  was  therefore  surprised  to  find 
this  language  erased. 


SESSINGHAUS    VS.    FROST.  403 

As  the  witness  usiiiji  the  i)rotanity  was  at  the  time  testifying  to  thft 
good  character  of  another  witness  for  contestant,  contestee  insisted  thsit 
his  hmguage  as  given  on  the  stand  should  remain.  It  aftected  the 
weight  of  his  testimony  as  a  witness  to  character. 

Notwithstanding  there  was  a  controversy  as  to  eliminating  it,  and 
contestee  insisted  it  should  remain  and  the  notary  decided  it  should 
remain,  the  notary  fiuds  it  tampered  with,  and  swears,  page  18,  "  I  wa» 
therefore  surprised  to  find  this  language  erased." 

The  disposition  of  anj"  interested  party  cannot  be  safely  trusted  in  the 
matter  of  writing  or  dictating  changes  in  a  deposition,  even  where  there 
is  no  such  proof  as  there  is  in  this  cause,  establishing  the  fa^ct  that 
changes  were  made  in  ])articular  testimony  after  a  positive  decision  by 
the  officer  that  it  should  remain.  The  fact  that  it  had  been  a  matter  of 
controversy  fixed  the  matter  on  the  mind,  and  to  boldly  alter  or  erase 
under  such  circumstances  is  a  positive  index  to  the  interest  and  dispo- 
sition of  the  attorney  who  was  thus  surreiJtitiously  intrusted  with  the 
deposition  on  which  he  must  make  his  case. 

We  cannot  under  the  law  and  the  fact  escape  from  the  conclusion 
that  this  motion  ought  to  be  sustained.  Why  this  question  is  ignored 
in  the  majority  report  of  the  subcommittee,  when  the  full  committee 
reserved  it  and  ordered  all  matters  pertaining  to  it  to  be  printed,  is  » 
surprise  to  us. 

It  is  all  the  more  a  surprise  when,  after  the  full  committee  had  passed 
on  the  motion  to  suppress,  "  without  prejudice,"  the  suboommittee,  ia 
order  to  endeavor  to  restore  to  the  depositions  the  integrity  they  had 
lost,  obtained  an  order  of  the  House  calling  the  notary  to  Washington^ 
and  commanding  him  to  bring  with  him  his  notes  of  testimony  for  com- 
l>arison  with  the  alleged  altered  deposition.  The  qrder  further  provided 
that  a  stenographer  might  be  employed  and  a  full  investigation  had. 

This  investigation  was  had,  but,  to  add  to  the  surprise,  the  notary 
stated  he  could  not  make  the  comparison  demanded.  He  had  destroyed^ 
the  original  notes  of  testimony.  It  further  appeared  that  he  had  de- 
stroyed these  "  original  notes  required  "  after  he  knew  both  from  personal 
information  and  from  the  newspapers  of  Saint  Louis,  that  the  integrity 
of  his  depositions  was  attacked.  This  destruction  was  also  in  the  face 
of  the  fact  that  stenographers  preserve  their  notes  even  where  they  are 
not  necessary  to  the  settlement  of  such  a  grave  charge. 

Inasmuch  as  it  was  the  duty  of  the  party  who  destroyed  the  integ- 
rit}-  of  the  depositions  to  restore  it,  and  in  view  of  the  relation  that- 
existed  between  that  attorney  and  the  notary,  the  destruction  of  suefat 
important  papers  while  a  charge  of  this  nature  was  pending  is,  to  say 
the  least,  adding  another  bad  feature  to  a  bad  case,  that  prevents  us 
from  escaping  the  issue  presented  by  the  motion,  and  hence  we  must 
report  that  the  motion  to  suppress  ought  to  be  sustained. 

II. 

The  first  clause  of  the  majority  report  is  that  155  votes  should  be 
given  to  contestant,  for  various  reasons,  involving  questions  of  law  and 
fact. 

We  are  not  able,  from  a  careful  reading  of  the  report,  to  gather  with 
certainty  any  particular  proposition  either  of  law  or  fact  on  which  the 
majority  relj'  in  claiming  these  votes  should  be  counted. 

The  proposition,  as  gathered  at  the  bottom  of  page  6  of  the  report,  is 
that  the  board  of  revision  of  the  city  of  Saint  Louis,  appointed  under 
the  registration  law,  "  improperly,  wrongfully,  and  fraudulently  denied 
them  the  right  to  vote." 


404  DIGEST  OF  ELECTION  CASES. 

If  the  fact  were  true  that  the  board  of  revision  acted  fraudulently  or 
were  in  any  manner  disposed  to  improperly  or  wrongfully  remove  from 
the  list  any  voter  who  they  knew  was  entitled  to  remain,  we  would 
concede  it  to  be  our  right  and  our  duty  to  rebuke  such  fraud. 

But  the  fact  as  stated  is  not  true.  It  is  glaringly  false.  That  par- 
ticular board  of  revision,  instead  of  being  disi)osed  to  do  wrong  or  act 
fraudulently  in  the  performance  of  their  duty,  were,  as  this  record  amply 
shows,  a  board  composed  of  the  best  citizens  of  Saint  Louis,  and  scru- 
pulously impartial  in  the  discharge  of  their  duties.  (Pages  1811,  1862, 
1806,  1791,  1799,  1823,  1834,  1838,  1839,  1852,  1876,  1893,  1974,  2414.) 
They  are  spoken  of  thus: 

Leverett  Bell,  city  counselor,  testifies,  on  page  1811  of  the  Record : 

Q.  Were  you  acquaiuted,  Mr.  Hell,  with  any  of  the  members  of  the  board  of  revis- 
ion ? — A.  Which  board  of  revision  ? 

Q.  The  one  that  immediately  preceded  the  election  of  November  2  last? — A.  Oh, 
jes,  sir;  I  knew  nearly  all  of  them,  I  think, 

Q.  What,  in  your  judgment,  was  the  standing  of  those  men  in  the  community,  and 
their  reputation  for  integrity  and  fair  dealing? — A.  It  was  a  most  excellent  board  in 
«very  respect.  I  think  that  within  my  experience  of  six  or  seven  years  in  the  city 
hall,  and  of  the  boards  of  revision,  I  never  knew  any  better  board,  taking  it  all  the 
way  through,  than  that;  it  was  a  board  that  didn't  represent  any  jjolitical  party  ex- 
clusively, but  it  represented  all  classes;  it  was  intelligent  and  honest ;  and  I  thought 
it  was  a  model  board  at  the  time  it  was  selected. 

Charles  G.  Gonter,  on  page  2414,  testifies: 

Q.  What  was  your  opinion  of  the  standing  as  citizens  of  the  board  of  revision 
Tvhich  sat  at  the  April  and  November  elections  ? — A.  I  thought  they  were  high-toned 
gentlemen,  and  incapable  of  doing  anything  wrong. 

Q.  In  their  actions  was  there  anything  of  a  partisan  character  ? — A.  Nothing  what- 
•ever. 

It  appears  that  perfect  good  faith  characterized  all  of  the  actions  of 
the  board,  and  although  composed  of  gentlemen  of  difterent  political 
belief  the  utmost  harmony  prevailed.  It  even  appears  from  the  Rec- 
ord that  the  president  of  the  board  was  a  Republican  (testimony  of 
JBenry  S.  Parker,  page  1862  of  the  Record) : 

Q.  What  is  your  name? — A.  Henry  S.  Parker. 

-Q.  You  live  in  this  city,  do  you  not,  Mr.  Parker? — A.  Yes,  sir. 

<5.  Mr.  Parker,  how  long  have  you  resided  in  the  city  of  Saint  Louis? — A.  Forty- 
three  or  forty-four  years, 

Q.  What  is  your  business  ? — A.  I  used  to  be  in  the  lumber  business,  but  I  am  not  in 
any  business  at  present. 

Q,  Were  you  a  me.uber  of  the  board  of  revision  that  sat  just  prior  to  the  last  No- 
vember election  ? — A.  Yes,  sir. 

Q.  Were  you  an  officer  of  that  board? — A,  I  was  presiding  officer,  I  believe. 

Q.  You  were  its  president? — A.  Yes,  sir. 

Q.  What  are  your  politics? — A.  I  am  a  Republican. 

If  it  is  insisted  that  these  155  names  should  be  counted  for  contestant, 
basing  the  claim  on  any  fraud  or  attempted  fraud  of  the  members  of 
the  board,  we  must  find  that  the  record  overwhelmingly  proves  such  a 

claim  false  in  fact. 

« 

III. 

The  question  of  fraud  on  the  part  of  the  members  being  disproved 
and  disposed  of,  other  grounds  must  be  sought  to  set  aside  the  action 
of  the  board  of  revision  as  to  these  155  persons.  On  page  7  we  find  the 
proi)osition  to  be  that  these  votes  should  be  counted,  because  the^ro- 
ceedings  of  the  board  were  in  violation  of  the  law  which  gave  them  au- 
thority. 


SESSINGHAUS    VS.    FROST.  405 

The  report  says,  page  7 : 

By  a  resolution  adopted  at  the  beginning,  heretofore  cited,  they  declared  they 
■would  hear  no  testimony,  and  not  act  upon  the  knowledge  of  the  board. 

We  must  deny  that  any  such  resolution  was  passed.  The  resolution 
is  on  page  4  of  report,  and  sjjeaks  for  itself,  and  it  will  bear  no  such 
construction. 

The  resolution  is  a  perfectly  proper  one,  one  made  to  facilitate  the 
immense  labors  of  the  board.  All  bodies  of  this  character  must  act 
through  committees.  The  resolution  simply  constituted  each  member 
of  the  board  a  committee  to  gather  "knowledge  of  errors,"  and  report 
the  same  to  the  board,  who  then  passed  on  his  report,  and  made  the 
"knowledge  of  the  member"  the  "knowledge  of  the  board." 

The  city  counselor  of  the  city  of  Saint  Lo^iis,  being  interrogated  by 
counsel  for  contestant  as  to  the  law  governing  the  board  of  revision, 
thus  states  it  (page  1816) : 

Q.  Then  yon  construe  the  words  "their  knowledge"  to  mean  the  knowledge  of  any 
individual  member,  and  the  words  "competent  testimony"  to  mean  any  kind  of  evi- 
dence which  in  the  mind  of  any  individual  would  be  a  fair  presumption  that  certain 
facts  did  exist  f — A.  I  understand  "  competent  testimony  "  there  applies  to  cases  where 
witnesses  are  produced  before  the  board,  and  the  words  "their  knowledge"  apply  to 
the  outside  operations  of  the  members  of  the  board.  Isn't  that  a  fact  f  The  words 
"competent  testimony"  apply,  as  I  remember  the  law,  to  witnesses  prodnced  before 
the  board,  who  testify  before  the  board.  And  "  their  knowledge,"  as  spoken  of,  is 
knowledge  acquired  by  the  member  of  the  board  outside  the  board  itself.  Now,  as 
to  that,  I  say  that  any  member  of  the  board  gaining  information,  in  a  manner  that 
carries  satisfaction  to  his  mind  as  being  honest  and  impartial,  may  at  any  time  report 
such  information  to  the  board;  and  if  satisfied  that  the  report  is  true,  the  board  may 
adopt  the  report  and  proceed  to  strike  off  the  names,  although  the  members  voting  for 
that  report  have  no  knowledge  of  it  themselves.  I  say  this  construction  necessarily 
applies  to  that  law.  Any  other  construction  would  so  impede  the  operations  of  the 
board  of  revision  that  it  would  be  a  board  of  revision  only  in  name. 

IV. 

We  next  find  the  proposition  to  be  that  the  members  of  this  board  in 
gathering  information  and  knowledge  employed  assistants,  and  because 
they  obtained  their  information  in  many  cases  through  assistants  the 
action  of  the  board  of  revision  on  these  155  names  should  be  set  aside. 
(Report,  page  5.) 

A  complete  answer  to  this,  as  well  as  much  satisfactory  informatiou 
as  to  the  work  of  revision  in  the  city  of  Saint  Louis,  will  be  found  again 
in  the  testimony  of  Leverett  Bell,  esq.,  the  city  counselor  of  the  city 
of  Saint  Louis  (page  18 J 5) : 

Q.  Is  there  any  law,  Mr.  Bell,  authorizing  this  board,  or  the  individual  membersof  it, 
to  employ  assistants? — A.  Well,  I  don't  think,  Mr.  Pollard,  that  the  employment  of 
assistants  is  inconsistent  with  anything  in  that  law.  The  board  of  revision  meets  and 
is  in  session  for  a  limited  time;  the  list  of  voters  in  this  city  embiaces  about  60,000 
names;  those  names,  if  you  divide  them  into  wards,  would  be  divided  into  twenty- 
eight  parts,  and  each  member  would  have  one  twenty-eighth,  or  less  or  more,  of  60,000 
names  to  look  after  during  his  term  of  office,  to  wit,  ten  days ;  the  action  of  the  board 
is  required  to  be  the  action  of  the  majority  of  the  board,  and  that  involves,  of  course,, 
reports  by  individual  members.  I  don't  think  that  the  law  excludes  the  idea  that  a 
member  of  the  board  may  employ  such  assistants  as  he  desires  for  the  purpose  of  ob- 
taining information;  if  it  were  otherwise,  if  that  is  excluded  by  the  language  of  the 
law,  then  the  powers  of  the  board  are  extremely  limited.  There  is  nothing  in  the 
law  that  prohibits,  in  my  judgment,  the  employment  of  assistants  by  membersof  the 
board  of  revision  to  aid  in  their  investigation  of  the  registration  list  in  this  city. 
This  list,  as  I  have  jnst  remarked,  contains  some  60,000  voters,  and  it  is  obviously  im- 
possible for  28  gentlemen  comprising  the  board  of  revision  to  go  over  that  number  of 
names  p.nd  acquire  a  personal  knowledge,  from  their  own  personal  investigation,  as  tf> 
whether  each  one  of  those  names  is  a  properly  registered  voter.     As  the  law  contains 


406  DIGEST    OF    ELECTION    CASES. 

no  conditions  denying  to  them  the  use  of  outside  parties,  I  don't  regard  the  employ- 
ment of  assistants  by  the  members  of  the  board  as  inconsistent  with  anything  con- 
tained in  the  law.  The  law  says,  of  course,  that  there  shall  be  a  judgment  of  the 
board  upon  the  question  whether  a  man  is  or  is  not  a  voter;  but  the  law  does  not  un- 
dertake to  say  how  that  judgment  shall  be  made  up  or  in  what  manner  that  infor- 
mation shall  be  acquired. 

V. 

But  the  action  of  the  board  of  revision  must  be  set  aside  because  the 
assistants  employed  acted  fraudulently. 

This  proposition  is  all  based  on  the  testimony  of  one  Michael  Burke. 
It  is  magnified  by  the  majority  report  beyond  all  limits,  and  since  it 
charges  actual  fraud  on  the  part  of  an  assistant  we  have  diligently 
and  without  success  sought  for  any  proof  of  this  fact;  of  course  it  is 
admitted  that  none  of  the  155  names  sought  to  be  counted  were  stricken 
off  by  Burke. 

It  is  painfully  apparent  that  the  man  was  solicited  to  give  damaging 
testimony  in  the  hope  of  being  rewarded  (page  88  of  Record) : 

Q.  What  induced  you,  who  have  in  your  direct  examination  testified  that  yon  voted 
for  R.  Graham  Frost  (the  contestee  in  this  case)  for  Congress,  to  spend  two  months, 
without  promises  of  pay,  in  working  for  Sessinghaus,  the  contestant,  in  order  to  de- 
feat Mr.  Frost? — A.  Mr.  Hardwig. 

Q.  What  did  Mr.  Hardwig  promise  youf^A.  He  promised  me  nothing. 

Q.  Why  did  you  do  that  ? — A.  He  asked  me  would  I  go  around  with  him  as  a 
friend. 

Q.  What  means  of  livelihood  had  you  in  the  mean  timet — A.  I  was  borrowing 
money  of  Hardwig  all  along. 

And  on  page  89  following: 

Q.  And  did  not  Mr.  Hardwig  expect  that  you  would  come  here  and  testify  as  you 
have  done,  and  that  yon  would  receive  some  compensation  for  it  ? — A.  I  don't  know 
what  he  thought,  sir. 

Q.  Did  he  say  so? — A.  He  did  not  say  so. 

Q.  Did  he  say  anything  of  the  kind  t — A.  No,  sir. 

<5.  Waa  it  tacitly  understood  that  you  should  ? — A.  That  is  something  I  don't  know. 

The  reviser  of  that  ward  was  a  most  reputable  citizen  of  Saint  Louis, 
and,  as  is  apparent  in  his  testimony  (page  1988),  interested  only  in  the 
faithful  and  impartial  performance  of  the  duty  assigned  to  him. 

So  scrupulous  was  he  in  this  discharge  of  his  duty  that  he  did  not 
trust  this  work  to  Burke  alone,  but  employed  a  member  of  the  Repub- 
lican central  committee  to  accompany  Burke.  Burke's  testimony,  page 
80  of  Record: 

Q.  Will  you  please  state  in  what  manner  you  did  this  work  ? — A.  Wells,  myself,  and 
Mr.  McClellan  did  this  work. 
Q.  Who  is  Mr.  McClellan? — A.  He  is  the  central  Republican  committeeman. 

Is  it  not  ridiculous  to  suppose  that  such  a  poor  fool  as  Burke  could 
do  anything  out  of  the  way  under  the  watchful  eye  of  a  member  of  the 
Republican  central  committee,  who  took  upon  himself  the  labor  of  re- 
vision for  no  other  reason  and  with  no  other  end  in  view  than  to  be 
*jure  that  the  work  was  properly  dene? 

If  there  was  any  question  as  to  the  actual  fact  that  Burke  did  not  do 
any  damage,  assisted  as  he  was  in  the  performance  of  his  duty  by  a 
member  of  the  Republican  central  committee,  it  is  clearly  established 
by  his  own  cross  examination.  He  breaks  down  completely,  and  con- 
fesses he  does  not  know  of  a  single  qualified  voter  against  whose  name 
he  noted  objection.     Here  are  his  own  words  (page  83) : 

Q.  Wfll,  I  will  ask  you  again,  did  you  cheat  anybody  out  of  his  vote  that  was 
legitimately  entitled  to  vote  ?— A.  I  don't  know,  sir.' 


SESSINGHAUS    VS.    FROST.  407 

Q.  You  now  tell  me  that  you  cannot  remember  the  name  of  one  single  Republican 
entitled  to  vote  that  you  struck  off  those  lists? — A.  No,  sir;  not  at  the  present  time 
I  cannot. 

Q.  Can't  you  give  the  name  of  any  person  living  at  any  place  when  this  was 
done  ? — A.  I  can't  think  of  any  one.     I  don't  remember  any. 

Tbis  is  the  sumand  substance  of  the  testimony  of  this  man,  so  magni- 
fied in  reports  and  briefs  as  to  pass  beyond  all  limits  of  recognition. 

VI. 

But  the  action  of  the  board  of  revision  must  be  set  aside  because 
the  voters  whose  names  were  stricken  off  were  not  actually  notified. 
(Page  7  majority  report.) 

The  law  provided  for  notice  by  publication,  and  is  as  follows: 

They  shall  sit  from  day  to  day,  not  exceeding  ten  days,  until  they  have  completed 
the  labors,  and  their  proceedings  shall  be  printed  daily  in  the  paper  doing  the  city 
printing.     (Revised  Statutes  of  Missouri,  1879,  vol.  2,  sec.  11,  page  1.578.) 

If,  as  we  have  seen,  the  board  of  revision  was  composed  of  citizens  of 
high  repute,  disposed  to  act  conscientiously  in  the  discharge  of  their 
duties,  and  they  did  perform  their  duty  to  the  best  of  their  ability,  and 
published  daily,  in  the  ofl&cial  organ  of  the  city,  the  result  of  their  work, 
and  these  155  men  were  publicly  notified  before  the  election  of  the  ac- 
tion taken  on  their  names,  and  they  took  no  steps  then  to  correct  any 
mistake  made,  shall  they  be  permitted  to  do  it  now  f 

If  they  permitted  this  duty — wholly  due  to  themselves  as  citizens 
and  voters  at  the  time  of  election — to  go  by  default,  should  they  not 
suffer  for  their  indifference  or  neglect  f 

Is  not  the  action  of  that  board  a  finality  as  far  as  it  went!  Has  it 
not  the  force  of  judgment?  The  law  provided  how  that  judgment 
might  be  set  aside.  It  caused  the  names  to  be  published,  so  that  those 
stricken  off'  might  be  notified;  and  if  mistakes  were  made,  the  citizens 
thus  stricken  off  couhl  call  the  attention  of  the  reviser  to  the  fact  that 
a  mistake  was  made.  It  is  proved  that  in  every  instance  where  the 
attention  of  the  revisers  were  called  to  mistakes  made  by  them  they 
were  corrected. 

VII. 

As  a  matter  of  fact  a  large  number  of  the  names  printed  on  page  3 
of  the  majority  report  had  otherwise  failed  to  comply  with  the  registra- 
tion law,  and  their  votes  could  not  conscientiously  be  received  by  judges 
of  election.  They  had  failed  to  exercise  the  diligence  required  of  all 
voters  and  to  comply  with  the  following  regulation: 

Sec.  13.  Any  registered  voter  who  shall  remove  from  one  place  to  another  in  said 
city  shall,  not  less  than  ten  days  previous  to  the  election  following,  report  the  fact  of 
snch  removal  to  the  recorder  of  votes,  giving  his  name  and  place  or  number  from 
vrhich.  as  well  as  that  to  which,  hfi  has  removed;  and  said  recorder  of  votes  shall 
note  the  fact  opposite  the  name  of  the  person  removing,  and  re-enter  his  name  in  the 
list  of  voters  for  the  district  wherein  he  may  be  entitled  to  vote.  (Revised  Statutes 
of  ilissouri,  1879,  vol.  2,  page  1578.) 

VIII. 

The  majority  of  the  committee  seemed  to  agree  that  these  views  of 
the  case  were  correct,  and  that  it  could  not  do  for  a  voter  what  he  neg- 
lected to  do  for  himself.  That  if  the  voter  failed  to  comply  with  the 
regulations  of  the  law  which  required  him  to  transfer  his  name  to  his 


408  DIGEST    OF    ELECTION    CASES. 

new  residence  it  was  his  own  fault.  It  was  also  apparent  that  the  voter 
had  had  his  day  in  court,  and  was  notified  through  the  oflQcial  daily- 
press  of  the  action  of  the  board  of  revision  on  his  name,  and  if  he 
failed  to  take  the  interest  that  all  citizens  ought  to  manifest  in  correct- 
ing mistakes  and  complying  with  regulations,  and  of  preserving  the 
privilege  granted  by  the  statute,  then  the  judgment  of  the  board  of 
revision  should  not  be  set  aside. 

The  only  claim  on  which  the  contestant  could  be  seated  would  be  that 
the  registration  law  of  Saint  Louis  was  not  in  accord  with  the  con- 
stitution and  laws  of  the  State  of  Missouri,  or  that  the  city  of  Saint 
Louis  had  not  the  right  to  adopt  a  charter  containing  provisions  for  the 
registration  of  voters. 

The  Committee  on  Elections  having,  as  we  must  presume,  satisfied 
themselves  they  could  make  no  recommendation  to  unseat  contestee  if 
the  registration  law  of  Saint  Louis  was  constitutional,  requested  argu- 
ment on  that  subject. 

On  January  16,  1883,  the  committee  passed  the  following  resolution  : 

Eesolved,  That  this  case  be  laid  over  until  January  19,  IS'^'i,  at  which  time  the  par- 
ties be  allowed  one  hour  on  each  side  for  written  or  oral  argument  before  the  whole 
committee,  to  be  confined  to  a  discussion  of  the  validity  and  effect  of  the  registration 
law  of  Saint  Louis. 

VALIDITY. 

The  particular  sections  affecting  this  cause  embraced  in  the  law  the 
validity  of  which  is  r.ow  called  in  question  are  as  follows  (Revised  Stat- 
utes of  Missouri,  1879,  vol.  11,  pages  1576  and  J  578) : 

Sec.  3.  Every  male  citizen  of  the  United  States,  and  every  person  of  foreign  birth 
who  may  have  declared  his  intention  to  become  a  citizen  ot  the  United  States  ac- 
cording to  law,  not  less  than  one  year  nor  more  than  five  years  before  he  offers  to  vote, 
who  is  over  the  age  of  twenty-one  years  ;  who  has  resided  in  the  State  one  year  next 
preceding  the  election  at  which  he  offers  to  vote,  and  during  the  last  sixty  days  of 
that  time  shall  have  resided  in  the  city  of  St.  Louis,  and  during  the  last  ten  days  of 
that  time  in  the  district  at  which  he  offers  to  vote  ;  who  has  not  been  convicted  of 
bribery,  perjury,  or  other  infamous  crimes,  nor  directly  interested  in  any  bet  or  wager 
depending  upon  the  result  of  the  election,  nor  serving  in  the  United  States  Army, 
shall  be  entitled  to  vote  at  such  elections  for  all  officers.  State  or  municipal,  made 
elective  by  the  people,  or  at  any  other  election  held  in  pursuance  of  the  laws  of  this 
State;  hut  shall  not  vote  ehewhere  than  in  tlit  district  tvhere  his  name  is  registered,  and 
whereof  he  is  registered  as  a  resident. 

«  •  •  •  .  «  •  • 

Sec.  5.  A  recorder  of  vot^s  shall  be  appointed  by  the  mayor  and  confirmed  by  the 
council,  who  shall  possess  the  qualifications  of  a  member  of  the  council.  He  shall 
hold  his  office  till  the  first  Tuesday  of  April,  1879,  anduutil  his  successor  is  appointed 
and  qualified,  and  every  subsequent  appointment  shall  be  for  a  term  of  four  years. 
Said  recorder  of  voters  shall  be  ineligible  to  any  elective  office  during  the  term  for 
which  he  is  appointed. 

Sec.  6.  Said  recorder  of  voters  shall  keep  his  office  at  the  city  hall,  and  shall  at 
all  times,  between  the  hours  of  nine  in  the  forenoon  and  five  in  the  afternoon,  attend 
therein  for  the  purpose  of  recording  in  the  various  registration-books  furnished  him 
by  the  register  the  names  of  the  qualified  voters  of  said  city.  He  is  empowered  to  ad- 
minister all  oaths  necessary  in  the  registration  of  voters  ;  and  any  person  who  shall 
falsely  take  and  subscribe  the  oath  prescribed  in  the  fourth  section  of  this  ordinance 
shall  thereby  incur  the  pains  and  penalties  of  perjury. 

Sec.  11.  The  mayor  shall  appoint  a  board  of  revision,  consisting  of  one  reputable 
citizen  from  each  ward  in  the  city,  who  shall  possess  the  qualifications  of  a  member 
of  the  house  of  delegates,  whose  duty  it  shall  be  to  meet  with  the  recorder  of  voters, 
at  his  office,  thirty  days  before  each  general.  State,  or  municipal  election,  for  the  pur- 
pose of  examining  the  registration,  and  making  and  noting  corrections  therein,  as 
may  he  rendered  necessary  by  either  their  knowledge  of  errors  committed  or  by  com- 
petent testimony  heard  before  the  board ;  a  majority  of  said  board  shall  be  necessary 


SESSINGHAUS   VS.    FROST.  409 

to  do  business,  and  the  mayor  shall  be  ex  officio  president  thereof.  They  shall  strike 
from  the  registration,  by  a  majority  vote,  names  of  all  persons  who  have  removed 
from  the  election  district  for  which  they  registered,  or  who  have  died,  and  shall  note 
the  fact  opposite  the  name  of  any  person  charged  with  having  registered  in  a  wronsf 
name,  or  who  for  any  reason  is  not  entitled  to  registration  under  the  provisions  of  thi» 
ordinance,  which  person  shall  be  challenged  by  the  judges  of  election  when  present- 
ing himself  to  vote,  and  rejected  unless  he  satisfy  said  judges  that  he  was  entitled  to 
register ;  and  said  board  shall  also  place  on  said  books  the  names  of  such  persons  a» 
in  their  judgment  have  been  improperly  rejected  by  the  recorder  of  voters.  They 
shall  sit  from  day  to  day,  not  exceeding  ten  days,  until  they  have  completed  th» 
labors,  and  tlieir  proceedings  shall  be  printed  daily  in  the  paper  doing  the  city  printing^ 
They  shall  each  be  allowed  the  sum  of  three  dollars  per  day  for  their  services. 
«  *  «  «  «  if  « 

Sec.  13.  Any  registered  voter  who  shall  remove  from  one  place  to  another  in  said 
city  shall,  not  less  than  ten  days  previous  to  the  election  following,  report  the  fact 
of  such  removal  to  the  recorder  of  voters,  giving  his  name  and  place  or  number  fronj 
which,  as  well  as  that  to  which,  he  has  removed;  and'-said  recorder  of  voters  shall 
note  the  fact  opposite  the  name  of  the  person  removing,  and  re-enter  his  name  in  the 
list  of  voters  for  the  district  wherein  he  may  be  entitled  to  vote. 

The  law  from  which  the  above  sections  are  taken  is  what  is  designated 
in  the  Eevised  Statutes  of  Missouri  as  the  "scheme  and  charter." 

The  authority  to  frame  this  "scheme  and  charter"  is  derived  not  from 
the  legislature,  but  from  the  constitution  of  the  State  of  Missouri^ 
adopted  by  the  people  of  that  State  in  the  year  18T5.  (See  constitution 
of  Missouri,  Eevised  Statutes  of  Missouri,  1879,  section  20,  article  IX.) 

SAINT  LOUIS. 

Sec.  20.  The  city  of  Saint  Louis  may  extend  its  limits  *  #  #  ^^(j  frame  a 
charter  for  the  city  thus  enlarged.  »  »  *  Such  scheme  shall  become  the  organie 
law  of  the  county  and  city,  and  such  charter  the  organic  law  of  the  city. 

Thirteen  freeholders  were  to  frame  this  charter,  and  the  only  limita- 
tion made  by  the  constitution  as  to  what  provisions  it  should  contain  is- 
to  be  found  in  the  following  section: 

Article  IX,  Sec.  23.  Such  charters  and  amendments  shall  always  be  in  harmony 
with  and  subject  to  the  coustitutiou  and  laws  of  Missouri.     «     •     » 

If  the  registration  law  above  quoted  and  embraced  in  the  charter  thus 
authorized  is  in  harmony  with  the  constitution  and  laws  of  Missouri, 
wherein  can  such  law  be  unconstitutional  ? 

If  there  is  any  want  of  harmony  it  can  be  readily  pointed  out.  It  is. 
certainly  not  in  conflict  with  any  registration  law  passed  by  the  general 
assembly  of  Missouri.  Compare  the  sections  of  the  charter  above  quoted 
with  sections  4391,  4393,  4399,  4401  of  the  general  registration  law  passed 
by  the  general  assembly  of  Missouri  for  all  cities  of  over  100,000  inhabit- 
ants, and  the  most  perfect  harmony  is  apparent.  In  fact,  they  are  al- 
most identical  in  phraseology. 

The  city  of  Saint  Louis  also  adopted  an  ordinance  which  contains  thO' 
same  provisions  embraced  in  tlie  charter.  (See  page  1681  and  following 
of  the  record.) 

The  ordinance,  the  charter,  and  the  law  passed  by  the  general  assem- 
bly are  substantially  copies  of  each  other.  • 

If,  then,  there  is  no  want  of  harmony,  what  other  reason  can  be  urged 
to  declare  the  law  invalid  f 

We  find  it  on  page  6  pf  the  majority  report  of  the  subcommittee : 

True  it  is  the  ordinance  of  Saint  Louis  provides  that  a  voter  "shall  not  vote  else- 
where than  in  the  district  where  his  name  is  registered  and  whereof  he  is  registered 
as  a  resident;"  but  it  is  to  be  remembered  that  this  ordinance  wsis  never  passed,  ac- 
cepted, or  adopted  by  the  legislature  of  Missouri,  and  that  the  constitution  of  1875^ 
which  authorized  the  city  of  Saint  Louis  to  adopt  a  charter,  also,  in  another  provis- 


410  DIGEST    OF    EIECTION    CASES. 

ion  authorized  the  general  assembly  to  pass  a  law  for  the  registration  of  voters  in 
cities  having  over  one  hundred  thousand  inhabitants.  The  power  under  the  consti- 
tution to  pass  such  a  law  was  vested  exclusively  in  the  general  assembly.  An  at- 
tempt on  the  part  of  any  other  party  to  make  such  a  law,  ordinance,  or  charter  is,  to 
«ay  the  least,  of  very  questionable  authority. 

The  section  referred  to  is  as  follows : 

Art.  8,  Skc.  5.  The  general  assembly  shall  provide  by  law  for  the  registration  of  all 
voters  in  cities  and  counties  having  a  population  of  more  than  100,000  inhabitants, 
and  may  provide  for  such  registration  in  cities  having  a  population  exceeding  25,000 
inhabitants  and  not  exceeding  100,000,  but  not  otherwise. 

It  is  apparent  that  the  constitution,  in  thus  providing  for  "cities  and 
-counties,"  does  not  include  or  refer  to  the  citj'  of  Saint  Louis.  Saint 
Louis  is  made  an  exception  from  all  other  cities ;  and  in  article  IX, 
■which  refers  to  "  counties,  cities,  and  towns,"  special  sections  are 
adopted  for  the  "  city  of  Saint  Louis." 

In  the  case  of  the  City  of  Saint  Louis  vs.  Sternberg  (69  Missouri  Ee- 
ports,  on  page  297)  Judge  Norton  says : 

It  will  be  observed  that  in  article  9  of  the  constitution,  under  the  head  of  "counties, 
cities,  and  towns,"  Saint  Louis  is  singled  out  from  all  other  cities  and  towns  in  the 
•State,  and  sections  20,  21,  22,  23,  24,  and  25  of  the  article  contain  i>rovi8ions  relating 
exclusively  to  it. 

The  fact  that  the  general  assembly  was  ordered  to  frame  a  registra- 
tion law  for  "  cities  and  counties  "  of  over  100,000  inhabitants  was  clearly 
not  intended  as  a  restriction  of  the  full  power  given  to  Saint  Louis  to 
also  frame  a  registration  law,  provided  it  was  not  in  conflict  with  State 
legislation. 

In  the  same  case  Judge  Norton  continues : 

The  general  purpose  that  the  city  might  have  the  power  to  enlarge  its  limits  and 
separate  itself  in  a  governmental  point  of  view  from  the  county,  and  have  tlie  right 
s,s  a  municipality  to  govern  itself,  provided  its  government  should  be  in  subordina- 
tion to  and  consistent  with  the  constitution  and  laws  of  the  State  of  Missouri,  is  mani- 
fested throughout  the  above  sections.     »     »     » 

It  is  clear,  we  think,  from  these  sections,  that  it  was  the  intention  of  the  framers 
■of  the  constitution  that  the  city  of  Saint  Louis  might  adopt  as  its  organic  law  a 
charter  containing  any  and  all  the  provisions  then  in  its  charter,  and  such  other  pro- 
visions as  would  not  be  inconsistent  with  the  constitution  and  laws  of  the  State. 

In  re  Chas.  Dunn  (vol.  9,  Missouri  Appeal  Keports,  page  255)  the 
court  says : 

An  ordinance  passed  under  authority  of  such  a  charter  must  of  course  be  equally  in 
liarmony  with  the  constitution  and  laws  of  the  State;  otherwise  it  will,  in  so  far  as 
it  fails  of  such  harmony,  be  invalid. 

By  the  word  harmony  in  this  connection  is  not  to  be  understood  an  exact  coinci- 
-dence  in  all  possible  points  of  comparison. 

Its  meaning  is  clearly  that  no  regulation  established  by  the  charter,  nor  any  made 
hy  its  authority,  shall  do  violence  either  to  the  declared  laws  or  to  the  liolicy  or  mani- 
fest governmental  purposes  of  the  State,  as  shown  in  her  constitution  and  statutory 
■enactments. 

A.8  has  been  observed,  instead  of  there  being  any  want  of  harmony, 
any  inconsistency,  any  violence  to  statutory  enactments,  the  charter, 
ordinance,  and  statutory  enactments  are  in  perfect  accord. 

'Besides,  the  registration  law  embraced  in  the  charter  of  Saint  Louis 
is  by  special  enactment  of  the  general  assembly  adopted  and  recognized 
as  the  law  governing  elections  in  that  city.  (Revised  Statutes  of  Mis- 
souri, 1879,  vol.  11,  page  1082.) 

Skc.  5503.  Elections  in  Saint  Louis — oonducUid  h&io. — All  elections  in  the  city  of  Saint 
XK)ui8  shall  be  conducted  in  all  respects  as  provided  by  the  laws  now  in  force  regu- 
lating elections  in  said  city. 


SESSINGHAUS    VS.    FROST.  411 

What  does  the  general  assembly  mean  by  "  the  laws  now  in  force 
governing  elections  in  said  city,"  au«l  why  does  the  statute  single  out 
Saint  Louis,  and  as  to  it  make  such  a  special  provision? 

Saint  Louis  had  a  registration  law  of  its  own;  that  was  in  its  charter  ; 
other  cities  did  not  have  registration  laws  of  their  own,  and  hence  it 
was  necessary  to  single  out  Saint  Louis. 

If  there  is  any  further  doubt  that  the  registration  laws  of  Saint  Louis 
is  what  is  meant  by  the  "laws  now  in  force  regulating  elections  in  said 
city,"  it  is  but  necessary  to  turn  to  the  Revised  Statutes  of  Missouri, 
where  the  charter  of  the  city  of  Saint  Louis  is  published  with  the  State 
laws.  (Revised  Statutes  of  Missouri,  vol.  11,  page  1575.J 

This  publication  was  incorporated  in  the  revised  statutes  of  the 
State  of  Missouri  not  by  chance,  but  by  direction  of  the  general  assem- 
bly.    (Revised  Statutes,  vol.  1,  title  "  Laws,"  sjiction  3158.) 

There  can  be  no  question  that  when  they  use  the  language  "laws 
now  in  force,"  in  section  5504,  and  "  except  as  otherwise  provided  by 
law,"  in  section  5563,  the  registration  laws  of  Saint  Louis  as  contained 
in  the  charter  and  printed  with  the  revised  laws  of  the  State  were  re- 
ferred to  as  existing  laws. 

This  being  the  case,  instead  of  there  being  want  of  harmony,  there 
is  not  onlj'  perfect  harmony,  but  a  legislative  adoption  of  these  very 
laws  in  question. 

We  must  therefore  conclude  that  these  registration  laws  are  valid. 

EFFECT. 

A  question  asked  made  this  perceptible,  viz : 

Even  if  valid,  how  far  is  this  committee  bound  by  yonr  segistration  laws  t 

The  most  satisfactory  answer  to  this  question  will  be  found  in  the 
following  quotations  from  McCrary's  American  Law  of  Elections : 

The  right  of  suffrage  is  not  a  natural  right,  nor  is  it  an  absolute,  unqualified  per- 
sonal rigiit.  It  is  a  right  derived  iu  this  country  from  constitutions  and  statutes.  It 
is  regulated  by  the  States,  and  their  power  to  fix  qualifications  of  voters  is  limited 
ouly  by  the  provisions  of  the  fifteenth  amendment  to  the  Constitution,  which  forbids 
any  distinction  on  account  of  race,  color,  or  previous  condition  of  servitude.  (41  Mo., 
Frank  P.  Blair  r«.  Ridgley,  page  — ;  Huber  vs.  Reilly,  53  Penn.  State  R.,  115;  Ridley 
V8.  Sherbrook,  3  Cold.,  569 ;  Anderson  vs.  Baker,  23  Md.,  531 ;  Brightly  Election  Cases, 
27;  see  also  sec.  3,  page  9.) 

And  again  : 

Subject  to  the  limitation  contained  iu  the  fifteenth  amendment  to  the  Constitution 
of  the  United  States,  the  power  to  fix  the  qualifications  of  voters  is  vested  in  the 
States.  Each  State  (ixes  for  itself  these  qualifications,  and  the  United  States  adopts 
the  State  law  upon  the  subject  as  the  rule  in  Federal  elections.    (Sec.  1,  chap.  1,  page  7. 

We  think  that,  as  to  effect,  the  provisions  of  the  law  being  reason- 
able, and  the  law  itself  never  having  been  questioned  in  the  courts  of 
Missouri,  the  House  will  not  see  fit  to  depart  from  the  principle  laid 
down  in  McCrary,  that  the  rule  as  to  Federal  elections  shall  be  in  accord 
with  the  laws  of  the  State  where  the  election  is  held.  (McCrary,  sec.  1, 
chap.  1.) 

If  by  the  word  effect  in  the  resolution  is  meant  the  practical  working 
of  the  law,  we  refer  to  and  adopt  the  views  of  the  city  counselor  of  the 
city  of  Saint  Louis,  as  the  same  appear  on  pages  1814,  1815,  and  1816 
of  the  record. 

He  clearly  shows  that  in  the  manner  of  performing  the  duty  imposed 
by  the  law  the  board  of  revision  did  not  proceed  otherwise  than  in  ac- 
cordance with  the  law. 


412  DIGEST    OE    ELECTION    CASES. 

Although  these  questions  as  to  validity  and  effect  may  be  considered 
as  answered  in  this  report  by  the  references  herein  made,  yet  we  would 
like  to  call  attention  to  an  obvious  erroneous  principle  urged  in  the 
argument  in  behalf  of  contestant. 

It  was  urged  in  his  behalf  that  the  law  requiring  registration  was  in 
violation  of  the  constitution  of  the  State  of  Missouri,  because  it  was 
adding  an  additional  qualification. 

In  Capen  vs.  Foster  (12  Pick,  485^.  and  Brightley's  Election  Cases, 
51,  and  McCrary,  section  7,  page  11,  in  discussing  the  power  to  provide 
for  the  orderly  exercise  of  the  right  of  suffrage,  and  the  power  to  enact 
registry  laws,  and  to  prohibit  those  not  registered  from  voting,  it  is 
decided  that  such  laws  do  not  add  to  qualifications  of  voters;  they  are 
simply  rules  regulating  voters.    And  McCrary  says,  section  7,  page  11 : 

It  is  now  generally  admitted  that  those  laws  do  not  add  to  the  constitutional  quali- 
fications of  voters,  and  are  therefore  not  invalid. 

It  was  also  urged  that  the  law  requiring  registration  was  not  '•  im- 
perative"  or  positive,  within  the  meaning  of  the  rule  laid  down  in 
McCrary. 

The  language  of  the  law  could  not  be  more  positive.     It  reads  thus : 

But  shall  not  vote  elsewhere  than  in  the  district  where  his  name  is  registered  and 
whereof  he  is  registered  as  a  resident.     (Revised  Statutes,  vol.  II,  page  1576.) 

And,  again,  to  show  that  the  regulation  is  imperative,  and  the  quali- 
fied voter  must  see  to  it  that  his  name  is  on  the  registration  list,  we 
cite  section  5487,  Revised  Statutes,  vol.  11,  which  contains  the  oath  re- 
quired to  be  taken  by  the  judges  of  election.  The  section,  after  giving 
a  form  of  the  oath,  adds : 

In  cities  where  registration  exists  they  shall  also  take  the  additional  oath  that 
they  will  not  allow  any  person  to  vote  whose  name  is  not  duly  registered. 

It  is  diflBcult  to  conceive  how  expressions  more  positive  could  be  in- 
troduced into  the  law.  As  stated  before,  this  registration  law  under 
which  they  have  been  acting  for  years  has  never  been  questioned  in  the 
courts  of  Missouri,  but  previous  laws  have  received  similar  interpreta- 
tion. 

All  the  decisions  of  Missouri  are  in  harmony  with  the  rules  as  stated 
in  this  report.  (See  41  Missouri,  page  63;  43  id.,  page  290;  38  id.,  page 
425;  44  id.,  page  346;  54  id.,  page  502;  67  id.,  page  331.) 

As  the  only  argument  invited  by  the  resolution  of  the  committee  was 
as  to  the  validity  and  effect  of  the  registration  laws,  we  concluded  that 
no  report  favorable  to  contestant  could  be  made  if  investigation  showed 
these  laws  to  be  good  and  valid. 

Some  labor  was  devoted  to  this  question,  and  the  references  here 
made  leave  no  possible  room  for  doubt.  The  laws  are  reasonable  and 
valid,  and  it  is  not  to  be  commended  that  a  contestant  should  be  seated 
by  overturning  the  laws  of  a  State  that  are  satisfactojy  to  the  people 
of  that  State,  and  the  legality  of  which  has  never  been  questioned  by 
themselves. 

The  question  here  fully  discussed  should  dispose  of  the  whole  case, 
for  in  the  other  subdivisions  and  claims  of  the  majority  report  these  same 
questions  prevail. 

In  subdivision  Xo.  2,  where,  as  the  report  says,  35  men  were  refused 
for  various  trivial  and  insignificant  reasons,  the  trivial  and  insignificant 
reasons  were  a  failure  and  neglect  to  comply  with  the  law  governing' 
the  election,  the  validity  of  which  has  been  established. 

As  an  instance  of  this  we  will  cite  from  the  record,  taking  the  name 


SESSINGHAUS    VS.    FROST.  4J3 

of  Samuel  Gray,  whose  vote  is  sought  to  be  counted  by  the  majority 
report. 

It  will  be  remembered  that  the  law  (section  13,  page  1576,  Revised 
Statutes  of  Missouri)  required  that  ''any  registered  voter  who  shall  re- 
move from  one  place  to  anotuer  in  said  city  shall,  not  less  than  ten 
days  previous  to  the  election  following,  report  the  fact  of  such  removal 
to  the  recorder  of  voters,  giving  his  name  and  place  or  number  from 
which,  as  well  as  that  to  which,  he  has  removed,"  »&c. 

Now,  from  Samuel  Gray's  own  testimony  it  will  appear  that  he  did 
not  comply  with  this  very  plain  and  obviously  reasonable  regulation. 
He  did  not  go  to  the  recorder  of  voters  ten  days  before  the  election. 
He  did  not  go  at  all.    Here  is  his  own  testimony : 

Q.  Well,  when  you  removed  from  2718  North  Tenth  you  did  not  go  to  the  city  hall 
to  transfer  to  805  Palm  ? — A.  No,  sir.  v 

Q,  Why  did  you  not  go  there  to  obtain  your  transfer? — A.  For  the  simple  reason 
that  I  thought  I  could  get  it  there  at  the  polls. 

Q.  Did  you  not  know  it  was  the  universal  rule  at  all  electious,  this  last  as  well  as 
all  previous  elections,  that  judges  at  the  polls  could  not  transfer  you  on  election 
day  f — A.  1  did  not,  sir  ;  I  supposed  it  would  be  just  the  same  it  was  before. 

Q.  Was  there  ever  a  transfer  made  at  the  polls  in  this  city  by  any  intelligent  judge 
of  election  ? — A.  I  could  not  say,  sir. 

Q.  At  this  poll  that  you  visited  the  judges  were  equally  divided,  Democratic  and 
Republican  ? — A.  I  could  not  say,  sir. 

Q.  Well,  there  were  Republican  judges  there? — A.  I  suppose  there  was;  I  don't 
know  but  they  were  ;  I  don't  know  anything  at  all  about  it. 

Q.  The  gentlemen  in  whose  company  you  visited  the  poll  were  perfectly  informed 
with  regard  to  that  fact  ? — A.  I  suppose  they  were  ;  I  don't  know. 

Q.  Well,  they  talked  to  the  judges  about  your  case  ? — A.  Yes,  sir;  Mr.  Shoenbeck 
did,  anyhow. 

Q.  And  it  was  carefully  considered  f — A.  Yes,  sir. 

Q.  How  long  were  you  .at  the  polling  window  ? — A.  I  was  there  some  twenty  min- 
utes, I  guess.  , 

Q.  Talking  about  your  vote  as  to  whetlier  you  could  vote  or  not  f — A.  I  went  there 
twice. 

Q.  How  long  did  you  remain  the  second  time? — A.  About  five  minutes;  they  just 
told  me  that  I  couldn't  vote,  and  I  went  back  to  my  work. 

Q.  You  could  not  vote — what  was  the  reason  ? — ^A.  Well,  because  I  was  not  trans- 
ferred, sir. 

Q.  The  judges  treated  you  politely  ? — A.  Yes,  sir;  they  all  treated  me  well  enough. 

Q.  And  it  was  their  conclusion  that  you,  having  neglected  to  transfer,  it  was  with- 
out their  power  to  transfer  you  on  election  day  ? — A.  I  suppose  that  was  their  idea 
about  it,  sir. 

Q.  And  you  went  away  ? — A.  Yes,  sir. 

Q.  And  that  was  all  that  was  said  and  done  there  f — A.  It  was  all  that  was  said  and 
done  at  the  polls,  that  I  know  of. 

Of  course  the  judges  of  election  could  not  receive  such  a  voter  with- 
out violating  their  oath  of  office. 

The  reasonableness  of  the  rule  of  law  requiring  the  voter  to  notify 
the  recorder  of  votes  of  his  removal,  and  thus  obtain  a  transfer  of  his 
name  on  the  registration  list  is  apparent. 

The  reviser  of  the  ward,  when  he  visits  the  place  from  which  the 
voter  has  removed,  does  not  find  him  living  there,  and  it  is  made  his 
duty  by  the  law  to  strike  his  name  off  as  a  voter  from  the  residence 
from  which  the  voter  has  removed. 

The  reviser  cannot  seek  out  with  accuracy  the  exact  streets  and  num- 
bers to  which  the  citizen  has  removed,  hence  the  law  very  wisely  makes 
it  the  duty  of  the  citizen  himself  to  attend  to  this  matter  ten  days  before 
the  election. 

The  ten  days'  previous  notice  is  required  of  the  citizen  because  the 
registration  list  for  each  voting  district  in  the  city  of  Saint  Louis  has  to 
be  printed  before  the  day  of  election. 

Inasmuch  as  there  are  244  election  precincts  in  the  city  of  Saint 


414  DIGEST    OF    ELECTION    CASES. 

Louis  (Kecord,  page  1701),  and  each  of  these  must  be  furuished  by  re- 
corder of  voters  with  the  name  and  street  and  number  of  the  voters  liv- 
ing in  each,  it  is  apparent  that  confii.sion  would  arise  unless  it  was  made 
the  duty  of  the  voter  himself  to  give  the  information  as  to  the  street 
and  number  to  which  he  had  removed. 

If  this  is  neglected  by  him,  it  is  the  voter's  own  fault.  The  right  to 
vote  is  a  privilege,  and  diligence  on  the  part  of  the  voter  is  demanded, 
and  if  we  find  neglect  instead  of  diligence,  we  cannot  do  for  him  at 
Washington  what  he  should  have  done  for  himself  at  Saint  Louis. 

Even  in  the  case  of  the  155  votes  sought  to  be  counted  by  the  major- 
ity report  the  same  neglect  on  the  part  of  the  voter  appears  even  in 
their  own  testimony.     We  will  cite  just  a  few. 

Daniel  Dickey,  in  majority  report  (Record,  page  563),  swears  in  regard 
to  his  own  case  as  follows  : 

Q.  The  only  registration  that  you  ever  made  at  the  city  hall  was  from  3304  Laclede 
avenue,  which  is  not,  however,  your  present  residence? — A.  No,  sir;  it  is  not  my 
present  residence.  It  is  more  than  a  mile  from  where  I  now  live.  It  is  near  two 
miles. 

Q.  And  you  never  obtained  a  transfer  at  the  city  hall  ? — A.  No,  sir. 

Q.  You  have  spoken  here  about  voting.  I  will  ask  you  whether  you  ever  obtained 
a  transfer  at  the  city  hall ;  whether  you  ever  obtained  a  transfer  from  your  former 
residence  to  your  present  residence  ? — A.  No,  sir. 

Q.  Why  did  you  neglect  that,  Mr.  Dickey? — A.  Simply  because  I  had  never  thought 
of  it,  only  immediately  before  the  Presidential  election,  and  the  crowd  then  was  so 
very  great  I  had  no  time  or  inclination  to  stay  there  a  whole  week  to  get  registered ; 
that  is  to  get  a  transfer. 

Edward  T.  Goodfellow  (Record,  page  566) : 

Q.  You  never  obtained  a  transfer  from  your  last  registering  place  and  didn't  regis- 
ter at  the  polls  ? — A.  No,  sir. 

Q.  And  the  place  that  you  registered  from  on  April  last  was  a  mile  or  two  from 
where  you  lived  on  election  day  t — A.  Yes,  sir. 

John  Johnson  (Record,  page  1166) : 

Q.  When  you  moved  did  yon  notify  the  officers  at  the  city  hall  that  you  had  moved  T 
— A.  No,  sir. 

Q.  So  you  got  no  transfer  between  these  places — you  got  no  transfer  froni  one  place 
to  another  ? — A.  No,  sir. 

Q.  How  far  are  they  apart' — where  yon  registered  from  before  and  where  you  lived 
on  election  day — how  far  are  these  two  places  apart? — A.  Well, it  is  at  least  two 
miles,  I  guess. 

George  Lang  (Record,  page  1587) : 

Q.  Why  didn't  you  obtain  a  transfer  when  you  moved. — A.  I  suppose  it  was  my 
neglect. 

Q.  You  knew  it  was  your  duty  to  do  it  ? — A.  I  suppose  so,  but  then  I  am  pretty  busy 
all  the  time. 

Charles  Meslemacher  (Record,  page  1059) : 

Q.  You  are  a  commission  merchant,  you  say  ? — A.  Yes,  sir. 

Q.  They  told  you  at  the  polls  that  you  had  moved,  and  therefore  your  name  was  not 
on  the  list? — A.  They  said  my  name  was  stricken  off"  and  they  could  not  find  it  on  the 
new  list ;  they  didn't  have  my  name. 

Q.  Yon  moved  from  1304  Warren  ? — A.  Yes,  sir. 

Q.  Where  you  had  previously  registered  ? — A.  Yes,  sir ;  to  2517  North  Thirteenth. 

Q.  And  you  didn't  notify  the  authorities  at  the  city  hall  of  the  fact  that  you  had 
made  that  removal  ? — A.  I  did  not  notify  them. 

Q.  And  therefore  you  had  obtained  no  transfer  ? — A.  No,  sir ;  I  had  not  obtained 
any  transfer. 

Robert  E.  Nagle  (Record,  page  720) : 

Q.  You  didn't  have  time  to  obtain  a  transfer  ? — A.  No,  sir. 

Q.  And  the  registrar  at  the  polls  told  you  that  inasmuch  as  you  had  not  obtained 
a  transfer  he  couldn't  register  you  at  the  polls,  because  no  transfers  could  be  made  at 
the  polls  T — A.  That  is  the  understanding  I  had. 


SESSINGHAUS    VS.    FROST.  415 

Q.  That  was  the  same  all  over  the  city  ? — A.  That  is  the  idea  ;  yes,  sir. 

Charles  A.  Price  (Record,  page  643) : 

Q.  You  found  your  name  stricken  off  at  the  first  place  that  you  went  to? — A.  Yes, 
sir. 

Q.  And  yon  told  the  judges  that  you  had  registered  before  that,  but  had  failed  to 
obtain  a  transfer  ? — A.  Yes,  sir. 

William  Raining  (Record,  page  1040) : 

Q.  Where  were  you  living  when  you  voted  for  Hayes? — A.  Well,  I  was  living  on 
Victoria  street  then. 

Q.  And  after  you  moved  from  Victoria  street  yon  did  not  notify  the  authorities  at 
the  city  hall  of  the  fact  of  your  removal  in  order  to  obtain  a  transfer?— A.  No,  oir. 

Q.  Why  didn't  you  do  that?— A.  Well,  I  didn't  think  about  it.  I  asked  Mr.  Con- 
rades  about  it,  and  he  says  it  was  not  necessary  ;  it  will  be  time  enough  to  do  that  at 
the  i^>olls. 

Q.  Did  yon  not  know  that  it  would  be  impossible  for  any  judge  to  make  a  transfer  f 
— A.  I  didn't  know  that,  sir. 

Q.  If  you  had  known  that  you  would  have  gone  to  the  city  hall  ? — A.  Yes,  sir. 

Q.  Anil  got  your  transfer  in  proper  form  ? — A.  Yes,  sir. 

Q.  You  know  that  there  wjis  a  great  many  Democrats  as  well  as  Reimblicans  that, 
were  in  the  same  situation  that  didn't  know  the  fact,  and  therefore  could  not  vote  at 
the  election  ? — A.  Yes,  sir ;  I  suppose  so. 

Frank  Schallon  (Record,  page  777) : 

Q.  Why  didn't  you  go  to  the  city  hall  and  have  this  transfer  made  ? — A.  Well,  I 
thought  it  was  near  where  I  lived.  1  lived  in  the  same  place  where  I  lived  before  ; 
I  thought  I  had  a  right  to  vote  ;  nobody  was  telling  me  anything  else.  I  told  Georgfr 
Davenport  to  have  me  registered,  and  he  promised  to  do  so.  That  is  where  he  lived. 
He  said  that  he  would  see  to  my  name. 

Q.  Why  didn't  yoii  go  to  the  city  hall  and  attend  to  that  yourself,  inasmuch  as- 
you  were  the  parfy  ? — A.  I  haven't  got  the  time  to  run  around  and  have  myself  reg- 
istered. 

Aug.  Solari  (Record,  page  581) : 

Q.  So  you  didn't  take  time  and  wait  to  obtain  a  transfer? — A.  I  did  not.  I  thought 
I  was  entitled  to  register  at  the  polling  place. 

Q.  So  when  you  went  to  the  i)olls  the  judges  told  you  that  under  the  law  they  had 
no  power  to  make  a  transfer  on  election  day  ;  that  it  was  your  duty  to  do  that  at  the 
city  hall  prior  to  the  election  after  you  had  removed  ? — A.  That  is  about  it,  sir. 

John  Zieres  (Record,  page  993) : 

Q.  And  they  told  you,  that  you  not  having  transferred  there,  that  you  could  not 
vote  at  those  polls?— A.  I  went  back  to  the  polls  and  told  one  of  the  judges  there^ 
Mr.  Schaett'er — Louis  Schaeffer;  he  was  a  judge  and  one  of  my. friends 

Q.  He  was  a  Republican  ? — A.  I  don't  know  what  ticket  he  votes. 

Q.  But  yon  suppose  him  to  be  a  Republican  ? — A.  I  have  heard  him  to  be  such. 

Q.  He  was  a  Republican  judge  at  that  poll  ?  You  are  an  intelligent  white  man.-^ 
A.  I  think  I  am. 

John  G.  Redemeirer  (Record,  page  803) : 

Q.  You  say  you  always  voted  on  Broadway  ? — A.  Yes,  sir. 

Q.  How  far  is  that  from  the  place  that  you  lived  in  on  election  day? — A.  Well,  I 
suppose  that  is  within  a  half  a  mile. 

Q.  Well,  that  is  in  a  different  polling  precinct? — A.  Yee,  sir. 

Q.  But  you  obtained  no  transfer  ? — A.  No,  sir. 

Q.  Never  did  get  one  ? — A.  No,  sir. 

Q.  Why  didn't  you  go  to  the  city  hall  to  obtain  a  transfer  ? — A.  I  wouldn't  be- 
bothered  that  much. 

Q.  You  didn't  take  enough  interest  in  it  to  go  up  there  and  get  it?— A.  No,  sir. 

Q.  You  didn't  care  enough  about  it  ?— A.  I  didn't  trouble  my  head  about  it ;  I  didn't 
care  a  damn. 

Q.  You  didn't  care  a  damn  ? — A.  No,  sir. 

Q.  Yon  didn't  take  enough  interest  in  the  matter  to  go  to  the  city  hall  and  trans- 
fer?— A.  No,  sir. 

Here  are  voters  and  only  a  few  of  many  whose  names  are  in  the  ma- 
jority report  who  did  not  take  interest  enough  in  the  election  to  comply 


416  DIGEST  OF  ELECTION  CASES. 

with  the  regulation  of  the  law  to  notify  the  oflBcials  of  their  removal 
from  one  residence  to  another. 

These  names  in  last  citations  are  all  included  in  the  first  claim  of  155 
votes  grounded  on  their  being  improperly  stricken  from  the  registration 
list.  Their  own  testimony  shows  it  was  the  duty  of  the  revising  board 
to  strike  them  off  from  "  appearing  on  the  lists  as  residing  at  a  certain 
place  "  from  which  place  they  themselves  admit  they  had  moved.  They 
were  not  improperly  stricken  oft".  The  reviser  acted  properly.  The 
voter  neglected  to  do  his  duty. 

In  all  the  claims  of  the  majority  report  this  neglect  of  obedience  to 
a  reasonable  regulation  underlies  the  claim  as  presented. 

There  are  two  claims  of  mistake  in  the  ofiicial  count  of  a  few  votes, 
six  or  eight,  but  the  testimony  on  which  the  official  return  is  sought  to 
be  contradicted  does  not  rise  to  the  dignity  of  being  seriously  consid- 
ered as  evidence.  There  is  a  claim  that  15  Greenback  Labor  tickets 
were  rejected  on  which  it  is  supposed  the  name  of  contestant  ap])eared, 
but  on  a  reference  to  the  record  the  one  witness  who  testifies  to  this  does 
not  give  any  positive  testimouy ;  it  is  all  guess-work.  The  witness  him- 
self does  not  appear  to  be  familiar  with  either  the  make-uj)  of  tUe  ticket 
or  the  number  who  voted  them ;  thinks  most  of  the  15  had  contestant's 
name  on.     (See  his  testimony,  page  012,  as  cited  in  report.) 

Kegarding  as  we  do  that  the  settlement  of  the  question  of  the  validiy 
and  effect  of  the  registration  laws  of  Saint  Louis  decides  this  case  in 
favor  of  the  sitting  member,  we  do  not  deem  it  necessary  to  go  into 
detail  of  votes.  However,  there  is  a  claim  of  86  votes  made  under  a 
special  registration  law,  called  the  "  O'Neil  act,"  which  enabled  persons 
never  registered  to  register  at  the  polls ;  and  such  a  gross  abuse  was 
made  of  this  privilege  in  this  cause  in  the  interest  of  contestant  that 
some  reference  should  be  made  to  this  claim  in  this  report. 

This  act  was  enforced  that  election,  but  on  account  of  these  gross 
abuses  had  to  be  repealed.    These  abuses  will  be  referred  to  hereafter. 

We  must  say  now,  without  quoting  fully  from  the  citations  of  the 
majority  report,  that  they  show  that,  as  usual,  the  voters  whose  names 
are  given  had  failed  to  transfer.  They  actually  had  been  previously 
registered,  and  hence,  having  been  once  registered,  could  not  avail 
themselves  of  the  extraordinary  privileges  of  that  act.  The  act  is  as 
follows : 

AN  ACT  to  provide  for  the  exercise  of  the  tight  of  voting  by  persons  who  have  failed  to  register. 

Be  U  enacted  by  the  general  assembly  of  the  State  of  Missouri  as  follows : 
Section  1.  In  all  State,  county,  and  municipal  elections  hereafter  held  in  any  city 
of  this  State  having  a  population  of  one  hundred  thousand  inhabitairts  or  more  no 
person  sball  be  deprived  of  the  right  of  voting  at  such  election  by  reason  of  having 
tailed  to  register :  Provided,  That  in  all  cities  where  registration  is  required  by  law 
the  party  offering  to  vote,  but  who  from  any  cause  has  failed  to  register  before  he 
offers  to  vote,  shall  be,  on  the  day  of  such  election,  registered  by  a  special  registrar 
of  election,  appointed  by  the  judges  of  election  for  that  puri)ose  at  each  precinct,  as 
a  qualified  voter,  in  a  book  to  be  kept  for  that  purpose  ;  and  the  ballot  of  such  voter 
«hall  be  received  and  counted  at  such  election;  and  such  registrar  shall  return  to  the 
registrar  of  voters  of  such  city  the  list  of  such  voters  so  registered  within  ten  days 
after  such  election,  provided  the  said  registrars  shall  be  sworn  as  provided  for  the 
recorder  of  voters,  and  the  books  shall  contain  the  written  or  printed  oath  as  re- 
quired in  the  regular  registration  books. 
Approved  March  30,  1877. 

Here  is  a  sample  of  the  men  who  never  had  registered.  John  Bell- 
ville  (Record,  page  476)  : 


SESS^NGHAL'S    VS.    FROST.  417 

Q.  How  often  did  you  change  your  residence  in  the  city  of  Saint  Louis  t — A.  The 
last  time  that  I  registered  I  was  living  on  Ninth  street,  between  Cass  avenue  and 
Mullanphy. 

«  iF  *  •  •  •  • 

Q.  Well,  you  had  been  previously  registered  ;  you  so  informed  the  judges,  and  they 
■wouMn't  penuit  you  to  make  a  transfer  on  that  day? — A.  No,  sir;  they  wouldn't 
allow  me  to  transfer. 

It  is  not  necessary  to  cite  others,  as  we  desire  to  show  some  of  the 
abuses  under  this  law  in  the  interest  of  this  contestant  which  should 
not  be  left  unconsidered. 

It  appears  from  the  record  that  the  contestant  failing  in  his  proof  to 
make  a  case,  some  unscrupulous  men  in  his  employ  sought  to  take  ad- 
vantage of  the  O'^eil  act  to  "manufacture  evidence." 

A  drill  class  was  formed  for  worthless  vagabonds,  who,  on  receipt  of 
75  cents,  would  swear  that  they  "  never  had  registered,"  and  that  on 
election  day  they  had  oflered  ''to  register  and  to  vote"  and  were  re- 
fused. 

So  many  of  this  herd  were  driven  on  to  one  poll  that  contestee  sum- 
moned all  of  its  oflBcers,  Democrats,  Republicans,  judges,  clerks.  United 
State's  supervisors,  and  marshals,  and  they  were  all  surprised  to  hear 
of  any  charge  of  unfairness  or  partiality  or  improper  refusal  of  a  voter 
at  the  poll  in  question. 

The  testimony  of  all  these  officers,  of  all  positions  and  all  parties, 
will  be  found  in  the  Record  on  pages  1918, 1919,  1920,  1922,  1923,  1924, 
1927,  1938,  1939,  1944,  1945,  1946,  1950,  1951. 

These  men  who  swore  that  these  vagabonds  must  have  deliberately 
lied  were  men  of  reputation  and  position  in  the  city  of  Saint  Louis. 
The  United  States  supervisor  had  been  an  officer  in  the  United  States 
Army,  and  he  testifies  : 

Q.  Was  there  any  man  that  came  there  that  day,  black  or  white,  who  produced 
satisfactory  evidence  that  he  had  been  in  the  city  long  enough,  refused  the  privilege 
to  register  and  vote  ? — A.  None. 

Q.  Did  you  notice  any  bias  or  prejudice  on  the  part  of  any  judge  or  other  officer  at 
that  poll  toward  any  voter,  white  or  black  f — A.  I  did  not. 

Q.  Audit  was  your  business  to  supervise  that  election  f — A.  Yes,  sir;  a  general 
sui»ervision  over  all  of  it. 

Yet  if  we  were  to  believe  the  vagabonds  whose  testimony  is  indi- 
cated in  these  formidable  tables,  and  the  majority  of  whom  swear  they 
were  refused  the  privilege  of  registering  and  voting  at  this  particular 
poll,  you  must  disregard  the  oaths  of  gentlemen — Republican  and  Dem- 
ocrat— as  respectable  as  ever  appeared  on  a  witness  stand. 

The  record  indicates  that  the  witnesses  referred  to  were  not  only 
drilled  but  deliberately,  for  lucre,  perjured  themselves. 

A  confession  of  this  bad  work  was  made  by  one  E.  A.  Fenton,  who 
had  been  employed  as  a  canvasser  on  behalf  of  contestant  in  the  con- 
test. 

William  J.  Anderson  (Record,  page  2267) : 

Q.  What  did  Mr.  Fulton  say  to  youT — A.  I  had  several  conversations  with  hira 
*     *     *     He  further  said  that  it  was  a  good  scheme  if  he  could  get  this  part  of  the 
work,  because  he  could  hide  up  his  own  dirty  work  that  him  and  Lewis  done;  they 
could  both  hide  it ;  he  seemed  very  anxious  to  hide  up  what  they  had  done  before  ; 
he  thought  his  was  a  very  fine  scheme  for  that. 

Record,  page  2268 : 

Q.  You  gave  him  a  list  of  the  negro  witnesses  that  had  been  examined  in  the  cause, 
for  the  purpose  of  ascertaining  whether  it  was  true  or  not  that  they  lived  where  they 
swore  they  did. — A.  Yes,  sir.  He  informed  me  that  it  wjis  not  necessary  for  him  to 
leave  his  room. 

n.  Mis.  35 27 


418  DIGEST    OF    ELECTION    CASES. 

Q.  He  informed  you  that  he  did  not  need  to  go  out  of  hia  rooms  for  that  husiness^ 
becauee  he  knew  whether  they  lied  or  had  not  lied  ? — A.  Yes,  sir. 

Kecord,  page  2268 : 

Q.  Did  he  state  to  you  that  he  could  locate  all  the  crooked  evidence  in  behalf  of 
the  contestant  in  this  case,  Mr.  Sessinghaus? — A.  Yes,  sir;  because,  he  said,  it  was 
not  necessary  for  him  to  leave  his  room  in  pursuit  of  this  object ;  that  he  knew  just 
where  each  one  of  them  lived  ;  there  might  be  one  or  two  that  be  didn't  know  ; 
that  he  would  probably  have  to  work  half  an  hour  a  day,  but  in  regards  to  uie  he 
said  I  would  have  to  go  right  to  work  and  look  up  witnesses,  and  serve  subpoenas  on 
them. 

Q.  What  did  he  say  in  regard  to  playing  "hell  "  with  Sessinghaus's  case  if  he  was 
placed  on  the  stand  against  him? — A.  He  told  me,  I  think  it  was  about — yes,  it  was 
about  two  days  and  a  half  or  three  days  before  he  left — he  had  seen  a  notification 
sent  to  J.  T.  Smith  by  myself  and  Lewis,  that  they  was  going,  to  be  witnesses  in  the 
Frost  case,  and  he  said  if  he  got  on  the  stand  and  swore  against  Sessinghaus  he  would 
"raise  hell."  He  said  that  all  the  dirty  work  he  knew  as  much  about  as  anybody 
would  be  like  to  know,  and  he  would  "raise  hell."  It  was  about  a  day,  I  think,  or  a 
day  and  a  half  after  that,  that  I  met  him  again  ;  it  was  on  Monday  ;  I  can't  remem- 
ber the  date  of  these  conversations. 

Now  it  appears  from  the  record,  page  2268,  that  this  witDess,  after  it 
became  known  that  he  was  subpoenaed  by  contestee,  was  induced  by 
some  agents  of  the  contestant  to  leave  the  city,  so  as  to  avoid  process : 

Q.  Did  he  state  anything  to  the  effect  that  if  he  was  paid  he  would  skip  the  town? 
— A.  Oh,  yes ;  he  said  if  Sessinghaus  would  put  up  the  most  mtney  he  would  skip. 

Eecord,  page  2269 : 

Q.  And  he  did  skip  ? — A.  I  think  he  did  skip,  sir;  I  couldn't  lind  him  anywhere ;  I 
think  it  was  on  Monday  that  I  seen  him  last  and  had  a  conversation  with  him  about 
a  quarter  past  eleven  or  twelve  o'clock;  he  said  that  a  man  named  Wiesehausen  had 
told  him  he  wanted  to  have  a  conversation  with  him,  and  he  was  going  down  to  the 
corner  of  Fifth  and  Olive ;  so  he  walked  down  town  to  Fifth  and  Olive,  and  went  up 
to  Burgess's  office,  where  we  generally  went  and  read  the  papers  ;  he  said,  when  he 
arrived  at  Jaccard's  (it  was  just  about  one  o'clock,  anyhow  it  was  one  o'clock  when  he 
started  down  stairs)  that  Wiesehausen  told  him  to  come  back.  I  don't  know  whether 
that  was  the  young  man  or  not  (indicating  a  gentleman  present  in  the  room). 

Q.  Is  this  the  Mr.  Wiesebahn  that  he  saw  at  that  place — this  gentleman  sitting  heie, 
who  is  the  agent  of  Mr.  Sessinghaus! — A.  I  don't  know  the  gentleman  ;  he  told  me 
that  the  gentleman  was  connected  with  the  Sessinghaus  contest  case. 

Q.  Well,  you  never  saw.him  after  that  conversation? — A.  No,  sir. 

Q.  Although  you  was  sent  to  bring  him  here  ? — A.  Yes,  sir ;  T  had  a  subpoena  in  my 
pocket  for  him. 

Q.  Did  he  also  say  that  he  had  got  the  money  from  Wiesehahn  and  then  skipped  f 

Eecord,  page  2270 : 

Q.  Well,  what  did  Lewis,  one  of  the  employes  of  Mr.  Sessinghaus,  tell  you  in  regard 
to  Fulton  skipping  the  town  after  be  got  the  money  from  Wiesehahn,  if  any  ? — A. 
Lewis  told  me  this:  he  said  I  was  a  fool;  he  said  that  there  was  money  paid  on  the 
Sessinghaus  side,  and  that  he  (Fulton)  had  got  it  and  skipped  to  Little  Rock,  Ark. 

It  further  appears  that  other  witnesses  familiar  with  the  perjury  of 
most  of  the  86  were  warned  that  if  they  testified  to  what  they  knew  they 
would  be  harmed. 

Record,  page  2295 : 

Q.  Where  did  he  t«ll  you  that  he  was  warned  by  threats  of  white  men  to  keep  his 
month  shut  in  regard  to  the  manner  in  which  this  Sessinghaus  testimony  was  woiked 
up? — A.  That  was  in  Reuben  Armstrong's  saloon — in  his  place;  I  was  standing  there 
■when  he  came  rushing  in,  and,  seeing  me  there  talking  with  a  gentleman,  he  called 
me  away  and  took  me  outside,  pointed  out  this  man,  and  says,  "Do  you  know  those 
men  there!"  I  says,  "No;  I  don't  know  them."  He  says,  "You  had  better  be  care- 
ful ;  they  are  following  us ;  one  of  them  was  in  my  room,  and  said  the  best  thing  for 
him  (Lewis)  to  do  was  to  keep  his  mouth  shut,  because  there  was  going  to  be  some- 
body killed  in  this  Sessinghaus-Frost  contest."  I  just  told  him  to  go  right  over  there 
and  ask  them  what  they  wanted.  I  finally  went  over  to  the  three,  and  this  man 
Flaherty  says,  "Yes,  that  is  the  man  I  saw  there — " 


SESSINGHAUS    VS.    FRrST.  419 


Record,  page  2295 


Q.  Was  the  man  with  the  Itlne  spot  under  his  eye  about  there? — A.  Yes,  sir;  lie 
■was  there;  he  is  the  man  that  Lewis  poiuted  out  aa  the  man  that  ha<i  come  to  his 
room  and  warned  him  of  danger. 

Q.  If  Lewis  would  come  down  and  give  away  these  secrets? — A.  If  he  testified  in 
the  Frost  side  of  the  case. 

Q.  When  was  it  that  Mr.  Fulton  told  yon  that  there  was  a  deal  of  slick  work  done 
on  the  pare  of  the  Sessiughaus  canvassers,  and  the  reason  he  ceased  to  work  for  them 
was  because  they  wanted  him  to  do  work  that  was  too  dirty  for  him  to  do  I — A.  That 
was  whfu  I  met  Full  on  on  the  corner  of  Ninth  and  Christy  avenue,  when  he  tohl  me 
that  I  should  go  and  see  Mr.  Donovan. 

Record,  page  2296 : 

Q.  That  he  bad  quit  work  for  Sessinghaus  because  they  requested  him  to  do  a  thing 
that  no  man,  white  or  black,  should  do  ? — A.  He  told  rae  there  was  a  great  deal  of 
slick  M'ork  going  on,  and  he  quit  because  he  done  dirty  work  enough,  and  he  didn't 
intend  to  do  any  more ;  that  was  the  reason  he  gave  me  for  quitting  Sessinghaus's 
employ. 

Q.  When  did  he  inform  yon  that  J.  T.  Smith  had  done  this  drilling,  and  that  he 
had  seen  him  do  it  ? — A.  Well,  I  think  that  was  in  the  same  conversation  that  we  had 
there.     It  lasted  about  half  an  hour  or  so. 

Jesse  Woods  (Record,  page  2215): 

Q.  Who  did  he  say  drilled  them?— A.  Well,  T.  J.  Smith.  It  was  Smith,  I  know- 
that  ;  I  know  Mr.  Smith  if  I  saw  him.  I  am  not  personally  acquainted  with  him ;  I 
know  him  Avhen  I  see  him. 

Q.  What  do  you  know  in  regard  to  negroes  coming  upon  the  stand  two  or  three  dif- 
ferent times,  under  different  names,  and  testifying  in  this  case,  thereby  getting  seventy- 
five  cents  each  appearance? — A.  There  was  seven  men  come  to  me  who  stated  that  it 
didn't  make  any  dittcrence  at  all  about  the  name  ;  they  could  just  go  there  and  swear 
and  come  away  and  then  go  back  again.  They  used  to  get  their  money  on  Carr  street, 
between  Tenth  and  Eleventh  streets,  on  the  east  side ;  as  near  as  my  knowledge  can 
recollect  that  is  what  they  told  rae.  There  was  nobody  told  me  nothing  else  about 
this ;  I  was  not  spoken  to  by  any  man  except  these  fellows'?  and  they  told  me  where 
they  got  their  money. 

Q.  What  do  you  know  in  regard  to  negroes  coming  two  or  three  times  on  the  stand  T 
— A.  I  don't  know  any  more  than  I  have  already  stated  to  you.  That  is  what  they 
told  me  theirselves ;  that  they  come  two  or  three  times  to  get  money.  They  showed 
me  the  money  they  got — six  bits  to  a  dollar.     I  just  come  again  those  parties. 

Record,  page  2216 : 

Q.  What  did  they  say,  Mr.  Woods? — A.  They  said  they  voted  under  different  names, 
out  of  that  district  or  in  that  district,  it  didn't  make  any  difference.  They  said  they 
had  to  say  that  they  wanted  to  vote  for  Sessinghans  and  they  wasn't  let,  and  then 
they  got  their  six  bits  for  it.     I  never  was  up  in  this  office  before,  gentlemen. 

Record,  page  2216: 

Q.  Now,  did  Lewis  say  anything  in  regard  to  these  men  saved  from  harm,  provided 
that  they  would  do  this — give  this  class  of  testimony  ? — A.  Lewis  said  he  said  to  these 
men,  whom  he  wanted  to  go  up  there,  to  swear  that  they  wanted  to  register  and 
vote — these  colored  men ;  he  said  to  them  that  nothing  could  be  done  with  them. 
I  said  this  wouldn't  do  me.  I  wouldn't  go  there  and  swear  to  a  lie  ;  if  I  did  I  would 
criminate  myself.  I  did  not  believe  he  conld  find  the  poorest  colored  man  in  the  city 
that  would  do  that — that  is,  go  on  the  stand  and  swear  to  a  lie.  But  he  went  on  to 
say  that  he  had  taken  these  men  out  there,  .and  that  he  had  been  given  a  quarter  for 
bringing  each  man  up.  I  said  that  might  be  done  by  some  colored  people,  but  you 
could  never  get  me  to  do  it. 

Q.  You  don't  seem  to  get  my  question  ;  what  did  he  say  about  keeping  them  from 
any  harm  for  doing  this  thing? — A.  Lewis  furthermore  said  that  he  told  these  parties 
that  they  could  not  be  hurt  if  they  testified,  because  these  that  they  testified  for 
would  be  afraid  to  hurt  them.  To  rae  he  was  going  to  give  the  whole  plan,  if  I 
wanted  anything  to  do  with  it.  I  told  him  I  didn't  want  to  know  anything  about  it; 
didn't  want  to  have  anythinf;^  to  do  with  it. 

Q.  This  is  Lewis  we  are  talking  about — this  man  that  was  employed  by  the  contest- 
ant in  this  case,  Mr.  Sessinghaus? — A.  Yes,  sir ;  he  had  been  with  Mr.  Smith,  and  he 
and  Smith  had  done  this;  they  were  both  working  for  Mr.  Sessinghaus's  side;  they 
were  going  to  defeat  Mr.  Frost.  I  believe  he  said  they  had  twenty  days  to  Frost^ 
ten. 


420  DIGEST    OF    ELECTION    CASES. 

Q.  Did  he  state  whether  Mr.  Smith  drilled  these  witnesses  ? — A.  Yes,  sir  ;  he  said 
they  were  drilled  by  Smith  somewhere  on  Carr  street,  or  Biddle  street,  between  Ninth 
and  Tenth  streets. 

This  testimony  is  of  much  siguificance  if  taken  in  connection  with 
that  given  by  the  officials — men  of  prominence  in  the  city  of  Saint 
Louis — who  swore  that  no  one  was  improperly  refused  registration  on 
that  election  day. 

This  particular  election  was  provided  with  many  safeguards.  United 
States  marshals  and  United  States  supervisors  were  appointed  to  every 
poll ;  their  duty  is  plainly  stated  in  the  United  States  statutes.  They 
were  all  furnished  with  special  instructions  by  the  officers  of  the  United 
States,  and  yet  in  all  their  reports  to  the  chief  marshal  and  the  chief 
supervisor  there  is  not  one  single  act  of  improper  conduct  reported  at 
any  poll. 

Inasmuch  as  this  district,  with  one  single  exception,  has  always  sent 
a  Democratic  Eepreseutative  to  Congress,  we  sought  particularly  for 
any  grounds  that  could  justify  the  claim  that  a  Republican  could  have 
to  representing  it.  Although  there  are  three  thousand  pages  of  testi- 
mony, yet  the  committee  itself  in  all  that  cannot  find  sufficient  facts  to 
justify  the  unseating  of  the  contestee  without  declaring  as  unconstitu- 
tional the  laws  governing  these  elections. 

We  find  these  laws  reasonable  and  valid  and  never  questioned  in  any 
court  of  that  State.  Hence  we  must  find  that  contestant's  cause  should 
be  dismissed,  and  therefore  recommend  the  adoption  of  the  following 
resolution : 

I.  Resolved^  That  E.  Graham  Frost  was  duly  elected  as  a  Representa- 
tive to  the  Forty-seventh  Congress  of  the  United  States  from  the  third 
Congressional  district  of  Missouri,  and  is  entitled  to  occupy  a  seat  in 
this  House  as  such. 


ADDENDA. 
In  matter  of  contest. 

GCSTATDS  SeSSIXGHAUS,   CONTESTANT, 

R.  Graham  Feost,  contestee. 

In  the  third  Congressional  district  of  Missouri. 

Now  comes  said  R.  Graham  Frost,  by  his  attorneys,  Donovan  &  Conroy,  and  moves 
your  honorable  body  to  dismiss  the  petition  of  Guatavus  Sessinghaus,  contestant 
herein,  for  the  reasons  herein  set  forth — 

First.  The  same  was  not  served  on  contestee  within  thirty  days  after  the  result  of 
the  election  in  said  third  Congressional  district  of  Missouri  had  been  by  the  proper 
authorities  determined. 

Second.  Because  the  said  notice  of  contest  does  not  specify  particularly  the  grounds 
upon  which  contestant  relies. 

Third.  The  same  does  not  state  facts  in  such  manner  or  form  as  constitutes  a  notice 
of  contest  under  the  law  for  such  cases  made  and  provided. 

DONOVAN  &  CONROY, 

AtVys  for  Contestee. 
In  matter  of  contest. 


GusTAVus  Sessinghaus,  contestant, 

vs. 

E.  Graham  Fkost,  contestee 


INT,  i 


In  the  third  Congressional  district  of  Missouri. 

Now  comes  said  R.  Graham  Frost,  by  his  attorneys,  Donovan  &  Conroy,  and  moves 
your  honorable  body  to  dismiss  or  strike  out  the  second,  third,  fourth",  fifth,  sixth, 


SESSINGHAUS    VS.    FROST.  421 

seventh,  eighth,  ninth,  tenth,  eleventh,  twelfth,  thirteenth,  sixteenth,  seventeenth, 
and  eighteenth  specifications  in  notice  of  contest  in  above-entitled  cause,  because  the 
same  .io  not  set  forth  the  grounds  of  contest  with  such  particularity  as  to  prevent  a, 
surpiise  being  practiced  upon  the  contestee,  or  with  such  particularity  as  to  put  him 
upon  a  proper  defense. 

DONOVAN  &  CONROY, 

Atfya  for  Contestee. 

Served  this  answer  and  motions  on  answer  in  the  city  of  Saint  Louis,  Mo.,  on  the 
21st  day  of  January,  1881,  by  delivering  a  true  copy  thereof  to  Gustavus  A.  Sessing- 
haus,  the  within  person,  contestant. 

ISAAC  M.  MASON,  Sheriff, 
By  JOSEPH  GREENWALD,  Deputy. 

(Indorsed:)  No.  2.  Sessinghans  vs.  Frost.  Answer.  Donovan  &  Conroy,  att'ys 
for  contestant. 

Before  the  House  of  Representatives  of  the  United  States,  Forty-seventh  Congress. 


Gustavus  Sessixghaus,  contestajjt, 
R.  Graham  Frost,  contestee 


1 


In  the  matter  of  contest  in  the  third  Congressional  district  of  Missouri. 

Now  comes  R.  Graham  Frost,  contestee,  by  his  attorneys,  Donovan  &  Conroy,  and 
moves  that  the  dispositions  taken  for  Gustavus  Sessinghaus,  contestant,  before  Frank 
Kraft,  esq.,  notary  public,  in  the  city  of  Saint  Louis,  Missouri,  he  suppressed. 

And  for  grounds  of  this  motion  this  contestee  states  that  without  the  knowledge  or 
consent  of  contestee  or  his  counsel — 

I.  That  since  the  taking  of  the  same  by  said  Frank  Kraft,  esq.,  they  have  been  out 
of  his  care,  custody,  and  possession,  and  were  not  safely  kept  and  preserved,  as  re- 
quired by  law. 

II.  That  since  the  taking  of  the  same  they  have  been  in  the  possession  of  strangers 
to  the  proceedings,  who  were  in  nowise  under  the  control  of  said  notary. 

III.  That  they  have  been  left  open  and  exposed  on  the  tables  in  the  oflSce  of  the 
counsel  for  the  contestant,  and  by  him,  and  by  his  oflSceboy,  and  by  strangers  to  the 
case,  read,  handled,  written  upon,  and  altered. 

IV.  That  all  of  said  depositions  since  the  taking  thereof  have  been  withdrawn 
from  the  care  of  the  notary  by  one  of  the  counsel  for  contestant,  and  were  in  his 
oflSce,  part,  for  many  days  and  part  for  weeks,  and  were  by  him  mutilated,  changed, 
and  altered. 

V.  That  the  alterations  and  changes  made  were  material  in  this,  that  a  large  por- 
tion of  the  contestant's  case  was  concerning  the  accuracy  of  the  registration  lists,  both 
with  regard  to  the  names  and  residences  of  voters,  and  the  alterations  in  the  spelling 
of  a  name  or  the  number  of  a  house,  to  make  which  full  opportunity  and  license  was 
given  by  the  notary,  might  serve  the  purpose  of  contestant  in  establishing  the  validity 
of  voters  for  himself  or  impeaching  votes  for  contestee. 

VI.  That  for  the  reasons  stated  in  the  accompanying  affidavits  the  integrity  of  said 
depositions  has  been  destroyed. 

DONOVAN  &  CONROY, 

Atfysfor  Contestee. 

Affidavits  in  support  of  motion. 

Gustavus  Sessinghaus,  contestant, 

vs. 

R.  Graham  Frost,  contestee. 

In  the  matter  of  contest  in  the  third  Congressional  district  of  Missouri. 

Frank  J.  Donovan,  being  duly  sworn,  on  his  oath  states  as  follows : 
I  was  of  connsel  for  R.  Graham  Frost  in  the  Congressional  contest  aforesaid. 
Some  time  prior  to  the  10th  day  of  November,  18^1,1  heard  that  the  testimony 
taken  in  said  contest  had,  since  the  same  was  given,  been  out  of  the  custody  of  the 
notary  charged  with  the  safe  custody  of  the  same;  that  it  had  been  left  with  Lyne 
S.  Metcalfe,  jr.,  one  of  the  connsel  for  Mr.  Sessinghaus,  and  had  been  handled  and  used 
bv  him  in  the  absence  of  the  notary. 


422  DIGEST    OF    ELECTION    CASES. 

On  said  10th  day  of  November  last,  R.  Graham  Frost  called  upon  me,  and  I  com- 
municated to  him  the  stranue  information  I  bad  received.  While  we  were  conversing 
on  the  subject  Lyne  S.  Metcalfe,  jr.,  counsel  for  contestant  came  into  the  office.  I  at 
once  said  to  him,  "Mr.  Metcalfe,  jou  must  have  your  brief  on  the  contest  prepared, 
inasmuch  as  you  have  spent  the  summer  reading  over  the  testimony  taken  in  the 
case."  He  replied,  "Oh,  no!  I  did  not  have  the  testimony.  I  had  only  the  deposi- 
tions of  one  day,  and  that  was  the  day  the  city  ordinances  were  introduced.  I  wanted 
to  see  if  the  ordinances  were  reported  correctly." 

I  stated  what  I  had  been  given  to  understand,  but  he  denied  that  he  had  had  any 
of  the  testimony,  with  the  exception  of  that  taken  on  one  specified  day. 

Mr.  Frost  made  a  note  of  Mr.  Metcalfe's  answer. 

On  the  following  day  Notary  Kraft  called  on  me  on  some  business  and  I  inqnired 
of  Mr.  Kraft  if  it  was  not  the  fact  that  Mr.  Metcalfe  had  all  of  the  testimony  since 
it  was  written  up.  He  was  very  reluctant  to  answer,  and  noticing  this,  I  resolved 
to  press  the  inquiry.  He  finally  told  me  that  before  he  had  gotten  out  of  bed  he  re- 
ceived a  letter  from  Mr.  Metcalfe,  requesting  him  to  be  sure  to  see  him  before  he 
■would  call  on  me. 

He  subsequently  said,  "  I  do  not  propose  to  lie  for  anybody.  The  fact  is  that  Mr. 
Metcalfe  had,  after  it  was  all  written  up,  all  of  the  testimony,  with  the  exception  of 
that  of  one  day." 

I  then  stated  that  Mr.  Metcalfe  had  denied  that  such  was  the  case.  He  replied  that 
he  could  not  help  that ;  that  he  had  two  letters  in  which  he  acknowledged  the  re- 
ceipt of  much  of  the  testimony,  and  other  letters  requesting  that  more  be  sent  to  him, 
and  that  all  of  the  requests  of  his  letters  were  complied  with. 

The  notary  further  stated  that  Mr.  Metcalfe  ought  to  have  known  whether  it  was 
right  or  wrong  for  him  to  permit  the  depositions  to  be  out  of  his  custody ;  that  Mr. 
Metcalfe  insisted  on  having  them,  and  that  he  complied  with  his  demand. 

The  notary  further  stated  that  he  wrote  much  of  the  evidence  from  his  notes  during 
his  summer  stay  in  Kansas ;  that  while  absent  from  the  city  Mr.  Metcalfe  continued 
writing  for  more  of  the  testimony,  and  it  was  sent  to  him. 

On  beinw  further  interrogated,  he  said  he  had  often  seen  the  testimony  lying  oi)en 
on  the  desk  of  Mr.  Metcalfe,  and  had  seen  his  office  boy  handling  it.  He  did  not 
know  who  else  may  have  handled  it,  but  it  lay  exposed,  and  any  one  going  in  or  out 
of  the  office  could  have  access  to  it. 

I  asked  Mr.  Kraft  if  any  alterations  had  been  made,  and  he  said  that  Mr.  Metcalfe 
had  written  on  the  margins,  and  had  made  corrections  in  names  and  localities,  and 
had -erased  a  portion  of  Dr.  McCarthy's  evidence,  but  that  1  e  had  reinstated  the  latter. 

This  affiant  states  that  it  will  appear  from  the  testimony  that  a  great  portion  of  the 
contestant's  evidence  consists  of  misspelt  names  and  places  of  residence  ;  that  it  was 
the  purpose  of  contestant  to  take  advantage  of  typographical  errors  to  disfranchise 
voters;  that  it  appears  from  the  affidavit  of  Notary  Kr-aft  that  he  permitted  Mr.  Met- 
calte  to  write  the  names  and  localities  as  he  saw  fit,  and  his  changes  were  adopted  ; 
that  such  changes  so  permitted  to  be  made  address  them-selves  directly  to  the  merits 
of  the  contestant's  case,  as  it  puts  it  within  the  power  of  Mr.  Sessinghans's  attorney 
to  so  spell  the  names  of  persons  and  write  the  numbers  of  their  residence  as  to  place 
them  outside  of  their  proper  election  precincts,  and  thus  disfranchise  voters  in  suf- 
ficient numbers  to  secure  the  election  of  Mr.  Sessinghaus. 

FRANK  J.  DONOVAN. 
State  of  Missouri, 

City  of  St.  Louis,  as : 

Sworn  to  and  subscribed  before  me  by  the  said  Frank  J.  Donovan  this  twenty- 
eighth  day  of  December,  A.  D.  1881. 

Witness  my  hand  and  official  seal. 

[SEAL.]  C.  D.  GREENE,  Jr., 

Notary  Public. 

GusTAVus  Sessinghaus,  contestant,  i 

vs.  > 

R.  Graham  Frost,  contkstee.         S 

In  the  matter  of  contest  in  the  third  Congressional  district  of  Missouri. 

R.  Graham  Frost,  being  duly  sworn,  on  his  oath  states  that : 

I  was  present  at  the  office  of  Donovan  &  Conroy,  in  the  city  of  St.  Louis,  on  the 
10th  day  of  November,  1881. 

Mr.  Donovan  informed  me  that  he  had  heard  that  all  the  depositions  given  on  be- 
half of  Gustavus  Sessinghaus  in  his  contest  had,  since  they  were  taken  by  Notary 
Kiaft,  been  in  the  poss'ion  of  his  counsel,  Lyne  S.  Metcalfe,  jr.  ;  thai  also  all  deposi- 
tions taken  on  behalf  of  myself  had,  at  the  request  of  Lyne  S.  Metcalfe,  jr.,  been  de- 
livered to  him  by  Notary  Kraft. 


SESSINGHAUS    VS.    FROST.  423 

We  were  conversing  about  this  extraordinary  proceeding  when  Lyne  S.  Metcalfe,  jr., 
©nttred  the  office. 

Mr.  Donovan  said  to  him,  "  Mr.  Metcalfe,  you  must  have  your  brief  on  the  contest 
already  prepared,  for  I  understand  that  you  have  during  the  summer  read  over  all 
of  the  testimony." 

His  reply  was,  "  Oh,  no  !  I  di4  uot  have  the  testimony  ;  I  had  only  my  depositions 
of  one  day,  and  that  was  the  day  the  city  ordinances  were  introduced.  I  wanted  to 
8ee  if  the  ordinances  were  reported  correctly.  " 

I  made  a  note  of  this  answer  just  as  it  fell  from  Mr.  Metcalfe's  lips ;  and  when  Mr. 
Donovan  talked  with  him  again  about  having  understood  that  he  had  had  the  testi- 
mony, he  positively  denied  that  such  was  the  truth. 

K.  GRAHAM  FROST. 
State  of  Missouri, 

City  of  St.  Louis,  88  : 

Sworn  to  and  subscribed  before  me  by  the  within-named  R.  Graham  Frost,  this 
twenty-eighth  day  of  Decen'iber,  A.  D.  1881. 

Witness  my  hand  and  official  seal. 

[seal.]  C.  D.  GREENE,  Jr., 

Notary  Public. 
Exhibit  A. 

St.  Louis,  Aug.  4,  1881. 
Frank  Kraft,  Esq.,  or  his  brother  : 

I  have  just  returned  from  the  North  and  want  more  manuscript  to  work  on.  I  re- 
turn by  messenger  the  testimony  taken  Feb.  Ist,  2d,  and  3d. 

Please  send  me  by  bearer  (or,  if  you  are  not  at  home,  by  messenger)  as  soon  as  pos- 
sible the  testimony  for  six  or  eight  days  following  the  3d  of  Feb.     I  don't  know  what 
dates  they  may  be,  for  a  Sunday  probably   intervenes.     I  guess  you  had  better  send 
me  8  days'  testimony,  for  I  want  to  work  pretty  steady  on  it  now. 
Yours,  truly, 

L.  S.  METCALFE,  Jr. 
Exhibit  B. 

St.  Louis,  Aug.  8,  1881. 
Mr.  Ckaft: 

Df:au  Sir  :  I  return  you  testimony  taken  Feb.  4th  and  .5th.  I  want  to  retain  that 
for  Feb.  7th  for  a  few  days,  as  I  have  a  copyist  at  work  copying  names  from  it.  Will 
return  it  when  I  return  next  batch.  Please  send  me  testimony  for  at  least  six  days, 
and,  if  you  can,  eight  days.  I  linish  it  up  so  fast  that  it  will  keep  me  sending  all  the 
time.  And  oblige — 
Yours,  truly, 

L.  S.  METCALFE,  Jr. 
Exhibit  C. 

St.  Louis,  Aug.  18,  1881. 
Mr.  Craft  :  I  send  you  by  messenger  the  testimony  taken  Feb.  7,  8, 9, 10, 11,  and  12. 
That  is  all  I  have  received,  except  that  for  Feb.  14.  The  latter  I  am  on,  and  will  re* 
tain  until  I  return  next  batch.  Please  send  by  bearer,  or  as  soon  thereafter  aa  possi- 
ble, testimony  for  the  following  eight  or  nine  days  ;  that  is  Feb.  15, 16, 17, 18, 19, 21, 22, 
•and  23.  And  oblige — 
Yours,  truly, 

METCALFE. 
When  does  Frank  return  ? 

GusTAVUs  Sessixghaus  ) 

vs.  > 

R.  Graham  Frost.      ) 

Contest  in  the  third  Congressional  district  of  Missouri. 

Frank  Kraft,  of  St.  Louis,  Mo.,  being  duly  sworn,  on  his  oath,  states: 
I  was  the  notary  public  selected  by  Gustavus  Sessinghaus  by  and  before  whom  the 
■depositions  for  him  in  the  above-entitled  cause  were  taken.  Said  testimony  was  taken 
at  the  office  of  Lyne  S.  Metcalfe,  jr.,  esq.,  .southeast  corner  of  Fifth  and  Olive  streets, 
in  the  city  of  St.  Louis,  and  was  transcribed  by  myself  and  assistants  at  ray  office  oa 
the  northwest  corner  of  Fifth  and  Olive  streets,  and  at  my  residence,  2635  South  Sev- 
enth street,  in  the  city  of  St.  Louis  aforesai<l  ;  also  a  portion  of  the  rontestee's  testi- 


424  DIGEST  OF  ELECTION  CASES. 

mony  was  by  me  transcribed  near  Channte,  Kansas,  to  which  latter  place  I  took  vaj 
notes  during  the  last  sumuuT,  and  continued  the  transcription  of  the  testimony  im 
this  contest.  Before  the  close  of  taking  this  testimony,  being  some  time  before  April 
22d,  1881,  I  spoke  to  both  counsel,  asking  them  to  allow  me  the  use  of  the  several 
memorandums  from  which  names  and  addnssta  had  been  read  during  the  course  of  th» 
depositions,  as  I  desired  to  cornet  the  spelling  of  names  of  persons  and  of  localities.     On 

or  about  the day  of ,  iPbl,  after  the  close  of  the  actual  taking  of  evidence,  I 

again  renewed  my  request,  this  time  in  writing,  to  the  agent  of  Mr.  Sessinghaus,  and 
in  answer  thereto  was  waited  on  by  Mr.  Metcalfe,  of  counsel  for  Mr.  Sessinghaus, 
who  informed  me  that  he  would  save  me  that  labor — the  labor  of  going  over  his  memo- 
randum— that  he  would  like  to  take  the  testimony  as  transcribed,  lo«ik  over  it,  atid  correct 
the  spelling  of  proper  names.  What  my  answer  was  to  this  proposal  I  do  not  now  re- 
member; at  any  rate  no  testimony  was  delivered  to  him,  because  none  had  at  that 
time  been  fully  completed  (it  having  been  dictated  by  me  to  several  anianuenses)^ 
As  I  \Nas  not  versed  in  regard  to  the  rules  which  govern  depositions  taken  in  Congres- 
sional contest  cases,  I  made  it  a  point  to  see  Mr.  Polla»d,  the  other  of  Mr.  Sessing- 
haus's  counsel,  and  from  him  received  substantially  these  words:  "I  don't  see  what 
he  wants  with  it;  I  am  sure  I  don't  want  to  touch  it ;  let  him  have  it  if  he  wants  it."" 
Thus  coun.'^eled  by  those  whom  I  thought  very  well  able  to  take  care  of  their  case,  I 
permitted  Mr.  Metcalfe  from  that  time  on,  as  rapidly  as  the  manuscript  was  turned 
in  to  me  by  my  clerks,  to  have  in  his  possession,  for  reriew  and  correction  of  the  spell- 
ing of  proper  navies,  all  the  manuscript  of  the  contestant's  case,  with  the  exception  of 
one  day  in  rebuttal,  which  I  showed  him,  but  which  was  not  exaniined  by  him.  I 
wish  again  to  state  that  in  peimitting  this  inspection  of  my  record  by  the  counsel  for 
the  contestant,  I  was  acting  under  the  impression  that  neither  of  the  counsel  for  the 
contestant  would  ask  me  to  do  that  which  would  in  any  degree  prejiidice  their  case. 

I'rom  time  to  time,  therefore,  in  pursuance  of  his  request,  I  gave  to  Mr.  Metcalfe 
the  several  depositions  taken  on  behalf  of  the  contestant ;  upon  returning  these  he 
would  receive  others  in  their  stead.  While  I  was  out  of  the  city  during  the  summer 
he  wrote  me  frequently  to  my  residence,  requesting  that  depositions  following  those 
already  inspected  by  him  be  sent  him.  These  requests  were  also  complied  with  in 
so  far  as  the  testimony  requested  by  him  was  ready  for  review.  Some  of  the  letters 
referred  to  above  calling  for  such  depositions  I  found  on  my  return  to  this  city,  and  I 
append  them  hereto,  marked  Exhibits  A,  B,  C,  respectively.  Others  to  the  same  pur- 
port were  destroyed  or  mislaid. 

I  called  frequently  at  the  oflSce  of  Mr.  Metcalfe,  and  saw  the  depositions  I  had  givea 
him  lying  on  his  desk  and  tables,  and  saw  his  office-boy  handling  them.  They  were 
open  and  exposed,  and  any  person  could  have  access  to  them.  I  did  not  object  to 
this  for  two  reasons,  the  first  being  that  I  deemed  him  as  much  interested  as  myself 
in  preserving  their  integrity,  and  the  second  reason  being  that  I  intended  to  go  over 
every  page  of  the  depositions  after  they  were  returned  to  me  by  Mr.  Metcalfe. 

On  or  about  the  10th  or  12th  of  November,  18fl,  when  I  had  completed  my  revision 
and  was  about  to  forward  the  testimony  to  the  clerk  of  the  House  of  Representativea 
at  Washington,  I  received  a  note  from  Mr.  Metcalfe  early  in  the  morning,  before  I 
was  out  ot  bed,  asking  me  to  please  call  at  his  office  on  that  day  at  a  certain  hour 
named,  and  to  be  sure  and  do  so  before  calling  at  the  office  of  counsel  for  Mr.  Frost. 
I  did  so  call  at  the  time  stated,  and  found  Mr.  Metcalfe  absent.  I  waited  a  little 
while.  I  again  called  during  the  day,  but  was  still  unable  to  find  him  in.  As  I  wa» 
very  anxious  to  complete  the  work  and  ship  the  testimony  on  to  Washington,  I  there- 
after called  on  Mr.  Donovan,  of  counsel  for  Mr.  Frost,  with  a  view  to  procuring  a 
settlement  of  con  test  ee's  bill,  and  was  then  asked  directly  by  Mr.  Donovan  if  Mr. 
Metcalfe  had  not  had  all  the  depositions  taken  by  the  contestant,  and  I  then  made 
true  answer  to  his  question. 

The  testimony  as  transcribed  by  myself  and  assistants  was  very  voluminous,  be- 
ing some  16,000  pages  if  reduced  to  ordinary  long-hand  writing,  but  I  exercised  espe- 
cial care  to  compare  the  depositions  as  returned  to  me  by  Mr.  Metcalfe  with  my  orig- 
inal short-hand  notes,  and  thus  was  enabled  to  see  what  changes  had  been  made  in 
the  manuscript.  The  only  alterations  so  made  by  Mr.  Metcalfe  that  I  discovered^ 
aside  from  the  mere  eotrection  of  proper  names,  was  found  in  the  testimony  of  one 
Dr.  McCarthy,  a  witness  for  the  contestant,  and  these  alterjitions  consisted  in  simply 
erasing  cer.'ain  profane  words  frequently  made  use  of  by  that  witness  in  giving  his 
testimony.  When  that  witness  was  yet  in  the  room,  after  giving  his  testimony, 
counsel  for  contestant  requested  of  me.  as  did  also  the  witness,  to  leave  out  such  pro- 
fanity, but  counsel  for  contestee  positively  refused  to  allow  this.  I  then  stated  to  the 
witness  that  I  would  not  write  the  objectionable  words  in  full,  but  would  simply  in- 
dicate them,  and  in  this  manner  they  appeared  in  my  manuscript.  I  was  therefore 
surprised  to  find  this  language  erased,  and  of  course,  immediately  reinstated  the  lan- 
guage as  given.  With  this  single  exception,  I  do  not  now  recall  that  any  other 
changes  were  made  in  the  testimony  aside  from  the  simple  correction  of  proptr  names, 
andthf-se  corrections  in  many  instances  were  made  in  the  margin  and  in  ink,  and  were 
not  erased  by  me;  others,  in  pencil,  will  also  still  be  found  in  the  margin. 


SESSINGHAUS    VS.    FROST  425 

I  will  state  also  that  had  the  request  been  made  of  rue  by  counsel  for  the  contestee 
for  a  like  privilege  to  inspect  their  depositions,  acting  under  the  same  ideas  I  should 
have  suifered  them  to  do  likewise;  but  such  r* quest  was  never  made,  and  no  single 
page  of  testimony  taken  in  this  case  was  in  the  possession  of  or  examined  by  thfr 
connsel  for  the  contestee,  Mr.  Frost. 

Inasmuch  as  it  would  seem  from  the  course  pursued  by  myself  in  permitting  thi* 
testimony  to  go  into  the  hands  of  Mr.  Metcalfe,  that  I  was  very  negligent  of  my  du- 
ties as  a  notary,  I  desire  again  to  add  that  I  hold  myself  blameless  in  this  matter, 
having  trusted  to  the  opinion  of  counsel  for  contestant,  who  I  felt  assured  would  not 
adopt  or  countenance  a  course  of  procedure  in  reference  to  their  testimony  whiclfc 
would  in  any  manner  prejudice  or  imperil  the  case  they  were  seeking  to  establish. 

FRANK  KRAFT. 
State  of  Missouri, 

City  of  St.  Louis,  as : 

Sworu  to  and  subscribed  before  me  this  twenty-eighth  day  of  December,  A.  D.. 

Witness  my  hand  and  official  seal. 

[SEAL.]  C.  D.  GREENE,  Jr., 

Notary  Public. 

Before  the  House  of  Representatives  of  the  United  States,  Forty-seventh  Congress.. 

GusTAVUs  Sessinghaus,  contestant, 

vs. 

R.  Graham  Frost,  contestee. 

In  the  matter  of  contest  in  the  third  Congressional  district  of  Missouri. 

Now  comes  Gustavus  Sessinghaus,  contestant,  and,  by  his  attorney,  H.  M.  Pollard^ 
files  the  following  affidavit : 

In  the  matter  of  the  motion  to  suppress  depositions  of  contestant. 

Sessinghaus 

vs. 
Frost. 

Before  the  Committee  of  Elections,  Forty-seventh  Congress. 

I,  James  AValter  Metcalfe  being  duly  sworn,  on  my  oath  say  that  I  am  17  years- 
old  ;  that  I  have  always  lived  in  the  city  of  St.  Louis ;  that  for  some  time  past  I 
have  bet^n  acting  as  clerk  and  office  boy  for  Mr.  L.  S.  Metcalfe,  jr.,  attorney  for  Gust. 
Sessinghaus  ;  that  at  various  times  during  the  months  of  Sept.  and  Oct.,  18H1,  Mr. 
Frank  Kraft,  the  notary  in  the  case  of  Sessinghaus  i\  Frost,  came  to  the  office  of" 
said  L.  S.  Metcalfe,  jr.,  bringing  with  him  parts  of  the  testimony  taken  for  contestant 
in  paid  case  ;  that  the  said  testimony,  when  received  by  Mr.  Metcalfe,  and  when  nofe 
being  examined  by  him  in  the  office,  was  placed  and  carefully  kept  in  the  safe  in  said 
office;  that  said  safe  is  a  strong  one,  to  which  the  said  Lyne  S.  Metcalfe,  jr.,  only,, 
and  no  one  else,  had  access  ;  that  Mr.  Metcalfe  seemed  to  exercise  the  greatest  care- 
and  caution  in  the  keeping  of  said  testimony;  that  he  repeatedly  cautioned  me  to  be 
careful  of  it,  and  not  allow  any  one  to  handle  it;  that  while  said  testimony  was  in 
said  office  the  said  Lyne  S.  Metcalfe,  jr.,  examined  it  for  the  puvpose  of  briefing  it;: 
that  no  one  in  or  about  the  office  except  Mr.  Metcalfe  ever  handled  or  had  any- 
thing to  do  with  the  said  testimony;  that  the  said  testimony  never  was  out  of  the- 
safe  in  the  absence  of  the  said  Lyne  S.  Metcalfe,  jr.,  from  the  office,  except  at  times- 
when  the  said  Mr.  Metcalfe,  having  completed  it,  left  it  with  me,  to  be  called  for  by 
the  said  Frank  Kraft,  and  at  such  times  the  said  testimony  was  carefully  wrapped  up 
in  brown  paper  and  tied  securely  ;  that  the  said  testimony  never  was  open  in  the  said 
office  except  while  Mr.  Metcalfe  was  present.  Although  I  had  nothing  to  do  with 
said  testimony  except  as  aforesaid,  I  frequently  saw  Mr.  Metcalfe  making  examination* 
of  and  briefing  said  testimony  ;  that  I  occasionally  saw  Mr.  Metcalfe  making  pencil 
marks  on  the  margin  of  said  testimony,  and  that  I  never  saw  him  use  a  pen  in  con- 
nection with  said  testimony,  and  that  J  never  saw  him  make  a  change  or  erasure  in 
the  body  of  said  testimony.  I  further  state  that  it  has  been  my  duty  and  custom  to 
remain  constantly  at  the  office  of  said  L.  S.  Metcalfe,  jr.,  from  eight  o'clock  in  th& 
morning  until  five  o'clock  in  the  evening,  and  th\t  from  my  own  knowledge  the  said 
testimony  Avas  kept  with  the  greatest  regard  to  its  safety  and  integrity. 

J.  W.  METCALFE. 

Subscribed  and  sworn  to  before  me  this  3d  day  of  January,  A.  D.  1882. 
[seal.]  '  A.  A.  PAXSON, 

Notary  Public. 


426  DIGEST  OF  ELECTION  CASES. 

(Indorsed:)  Sessinghaus  V8.  Fro8<^.  Affidavit  Ih  behalf  of  coutestant.  Affidavit  of 
J.  W.  Metcalfe.     Filed  by  N.  S.  Paul,  cl'k  Com.  of  Elections. 

In  the  matter  of  contest  for  seat  in  47tli  Congress  from  the  3d  Congressional  district 

of  Mo. 

<jrUSTAVU8   SeSSINGHAUS 

V. 

R.  Graham  Fkost. 

Frank  Kraft,  being  sworn,  says  he  was  employed  by  both  sides  in  said  cause  to  take 
the  testimony;  that  after  Mr.  Metcalfe  returned  to  him  the  testimony  he  carefully  com- 
pared every  sheet  and  page  with  his  original  short-hand  notes  of  the  evidence,  and 
wherever  the  marginal  suggestions  of  Metcalfe  concurred  with  his  said  notes  they  were 
adopted  by  affiant  and  were  by  him  written  in  in  ink.  That  said  marginal  suggestions 
were  in  pencil  except,  probably  in  one  or  two  instances.  That  there  were  no  altera- 
tions made  in  the  testimony  while  it  was  out  of  affiant's  hands.  That  the  only 
thing  done  to  it  were  marginal  memoranda,  which  wore  made  in  pencil,  save  in  one 
or  two  instances,  which  affiant  now  thinks  were  in  ink,  and  a  pencil-mark  drawn 
under  or  across  the  profane  words  of  witness  Dr.  Justin  McCarthy.  The  testimony 
was  absolutely  untouched  in  any  way  save  as  above  stated.  And  affiant  carefully 
examined  each  sheet  as  he  did  it  up  to  forward  to  Washington;  and  when  the  same 
was  placed  in  the  box  and  shipped  to  Washington  it  was  exactly  the  testimony 
eiven  and  nothing  else. 

FRANK  KRAFT. 

State  of  Missouri, 
City  of  St.  Louis : 

Subscribed  and  sworn  to.  before  me  this  3d  day  of  January,  1882. 

[SEAL.]  CHRISTOPHER  P.  ELLERBE, 

Notary  Public,  City  of  St,  Louis,  Mo. 

(Indorsed:)  Sessinghaus  us.  Frost.  Affidavit  in  behalf  of  contestant.  Affidavit  of 
Frank  Kraft.    Filed  by  N.  S.  Paul,  cl'k  Com.  on  Elections. 

In  the  matter  of  the  motion  to  suppress  depositions  of  coutestant. 

Sessinghaus 

V8. 

Frost. 

Before  the  Committee  of  Elections,  Forty-seventh  Congress. 

I,  Charles  M.  Switzer,  being  duly  sworn,  on  my  oath  say  that  I  am  an  attorney  at 
law  in  the  city  of  St.  Louis ;  that  I  have  for  the  past  eight  months  occupied  the  same 
offices  with  Lyne  S.  Metcalfe,  jr.,  attorney  for  Gust.  Sessinghaus  ;  that  I  am  intimately 
acquainted  with  the  said  Metcalfe ;  that  though  frequently  during  the  months  of 
August,  September,  and  October,  l!^81,  I  observed  Mr.  Metcalfe  making  examination 
of  papers  which  I  thought  from  their  size  were  papers  in  connection  with  the  con- 
tested election  case  of  Sessinghaus  v.  Frost,  I  never  knew  that  the  said  papers  were  the 
official  testimony  in  the  said  case;  that  I  never  handled  or  examined  said  papers ; 
that  I  never  saw  any  one  handle  or  examine  said  papers  except  the  said  Metcalfe ;  that 
I  never  saw  said  papers  lying  around  open  or  loose  in  said  office  except  when  in  use 
by  the  said  Metcalfe;  that  the  said  papers  seemed  to  be  kept  carefully  by  the  said 
Metcalfe,  with  no  apparent  chance  of  changing  or  tampering  with  them  on  the  part 
of  any  one.  1  further  say  that  during  the  periods  above  indicated  it  was  my  custom 
to  be  in  said  office  during  a  largo  part  of  each  day.  I  further  say  that  I  am  a  Demo- 
■orat. 

C.  M.  SWITZER. 

Subscribed  and  sworn  to  before  me  this  :3d  day  of  January,  A.  D.  I'^d2. 

[SEAL.]  "  A.  A.  PAXSON, 

Notary  Fublic. 

(Indorsed:)  Sessinghaus  ««.  Frost.  Affidavit  in  behalf  of  contestant.  Affidavit  of 
C  M.  Switzer.     Filed  by  N.  S.  Paul,  elk'  Com.  on  Elections. 


SESSINGHAUS    VS.    FROST.  427 

lu  the  matter  of  the  motion  to  suppress  depositions  of  contestant. 

Skssixghaus  ) 

vs.  > 

Frost.       ) 

Before  the  Conunittee  on  Elections,  Forty- seventh  Congress. 

I,  Lype  S.  Metcalfe,  jr.,  being  duly  sworu,  on  my  oath  say  that  I  am,  and  have  been 
since  the  3d  day  of  November,  A.  D.  1880,  attorney  for  Mr.  Sessinghaus  in  the  con- 
tested-election case  of  Sessinghaus  v.  Frost ;  that  after  the  evidence  in  the  case  was 
taken  by  the  notary  public,  Frank  Kraft,  the  latter  requested  of  me  the  use  of  certain 
memoranda  made  by  me  in  the  taking  of  testimony,  for  the  purpose  of  correcting  the 
spelling  of  proper  names  which  appeared  in  the  testimony  for  contestant ;  that  nav- 
iug  use  for  the  same  at  my  office,  and  desiring  also  to  brief  the  testimony,  I  requested 
the  said  notary  to  bring  to  my  office  the  testimony  as  copied  from  his  short-hand  notes 
ma<le  at  the  time  of  taking  the  same,  the  understanding  being  that  in  the  casual  ex- 
amination of  the  testimony  for  the  purpose  of  briefiug  it,  if  I  discovered  any  discrep- 
ancies in  the  spelling  of  names  or  in  the  residences  of  voters  between  that  manuscript 
and  the  notes  made  by  me  at  the  time  the  testimony  was  given,  I  should  upon  the 
margin  of  the  sheets  upon  which  the  testimony  was  \NTitteu  indicate  in  pencil-mark 
tbe  method  of  spelling  and  the  residence  as  shown  by  my  memoranda,  it  being  further 
understood  that  the  said  notary  would  go  over  all  the  testimony  again,  compare  my 
suggestions  with  his  original  short-hand  notes,  and  if  said  suggestions  were  found  to 
be  correct  he  would  change  the  manuscript  in  accordance  therewith.  It  was  further 
understood  that  I  should  keep  such  testimony,  while  in  my  possession,  carefully  and 
free  from  any  chance  or  opportunity  for  tampering.  In  accordance  with  this  under 
standing,  the  said  notary  left  at  mj'  office,  in  the  city  of  St.  Louis,  on  the  southeast 
corner  of  Fifth  and  Olive  streets,  from  time  to  time,  most  of  the  testimony  taken  for 
contestant,  the  said  testimony  being  brought  to  my  said  office  and  returned  from  there, 
wrapped  up  carefully  in  strong  brown  paper  and  tied  securely  ;  that  at  all  times  dur- 
ing the  day  and  night  when  such  testimony  was  not  being  examined  and  briefed  by 
me,  and  with  the  exception  of  once  or  twice  when  said  testimony  was  wrapped  up 
awaiting  the  call  of  the  notary  as  hereinafter  stated,  the  same  was  carefully  wrapped 
up  and  locked  securely  in  my  safe  in  said  office ;  that  said  safe  is  a  large  iron 
oae,  with  a  combination  lock  ;  that  no  one  except  myself  has  a  key  and  access  to 
said  safe ;  that  the  said  testimony  was  never  at  any  time  taken  out  of  my  office  by 
any  one  except  the  said  notary  or  his  agent,  when  said  testimony  was  returned  ;  that 
in  my  said  office,  and  nowhere  else,  I  made  a  hasty  examination  of  said  testimony 
for  the  purpose  of  brieting  it;  that  in  a  number  of  instances  where  I  found  that  his 
manuscript  differed  from  the  memoranda  ma«le  by  me  at  the  time  the  testimony  was 
taken,  I  indicated  in  the  margin  in  pencil  what  my  memoranda  showed  the  testimony 
to  have  been,  merely  to  call  the  attention  of  the  notary  to  the  same,  at  the  same 
time  drawing  a  line  in  pencil  under  the  words  which  difi'ered  from  my  memoranda ; 
that  in  no  instance  did  I  alt«r,  change,  or  erase  words  or  sentences  or  names  in  the 
body  of  the  said  testimony,  but  merely  made  marginal  suggestions,  and  that  the  testi- 
mony itself  was  left  absolutely  intact  by  me;  that  I  made  no  pen  and  ink  coiTcctions 
whatever,  and  that  in  the  case  of  one  witness  for  contestant,  as  referred  to  in  the  affi- 
davit of  the  notary,  I  drew  pencil  lines  under  certain  very  profane  words  used  by  the 
witness,  which  words  were  in  uo  respect  material  to  the  case,  but  that  even  in  that  case 
I  left  the  words  intact,  only  drawing  a  pencil  line  under  them.  I  further  state  that 
I  returned  to  the  said  notary  the  testimony  absolutely  intact  and  unchanged,  leaving 
to  the  notary  to  make  the  changes  suggested  only  so  far  as  they  were  found  to  agree 
with  his  original  notes.  I  further  state  that  the  notary  afterwards  assured  me  that 
my  suggestions  were  in  most  instances  in  harmony  with  his  original  notes,  and 
proper  to  be  made.  I  further  say  that  no  one  in  or  about  my  office,  except  my  office 
boy,  knew  the  fact  that  I  had  such  testimony  there  until  after  all  the  said  testimony 
was  returned  to  the  said  notary  and  sent  on  to  Washington  ;  that  my  said  office  boy 
knew  the  valueof  said  testimony  and  theuecessity  of  watching  and  keeping  it  safely  ; 
that  while  I  was  absent  from  my  said  office  said  testimony  was  in  my  said  safe  as 
aforesaid,  with  this  exception,  that  in  one  or  two  instances  it  was  wrapped  up  and 
carefully  tied,  awaiting  the  call  of  the  notary;  that  in  no  instance  did  I  leave  said. 
testimony  open  on  my  desk  during  my  absence. 

I  further  state  that  in  the  examination  of  said  testimony  I  used  every  precaution 
and  care  to  keep  it  safely  and  free  from  any  possible  tampering  with,  and  that,  as  an 
attorney,  I  felt  the  necessity  of  the  utmost  good  faith  and  fair  dealing,  being  only 
desirous  that  the  said  testimony  should  be  correctly  reported  so  far  as  was  possible, 
and  having  leisure  time  during  the  summer  months  in  which  to  prepare  materials  for 
a  brief. 


428  DIGEST    OF    ELECTION    CASES. 

I  further  8tat«  that  the  nse  of  the  tpstimony  at  my  office  in  the  manner  indicated 
above  was,  accordiuj;  lo  the  hsibit  and  custom  of  attorneys  in  this  city,  a  properone; 
that  it  is  a  common  thing  for  attorneys  to  take  to  rlieir  offices  depositions  and  writ- 
ten evidence  for  the  pnr]iose  of  making  examination  and  preparing  briefs,  it  l)eing  a 
practice  which  no  rei»utable  attorney  would  take  advantage  of  for  the  purpose  of 
clianging  testimony  ;  and  without  the  strongest  evidence  of  actual  altersition,  no 
high-minded  attorney  would  charge  another  with  having  committed  so  contemptible 
an  off'ense. 

I  furthes  state  that  the  said  Frank  Kraft,  as  notary,  was  employed  by  the  contestee 
as  well  as  the  contestant  to  take  the  testimony  in  this  case. 

LYNE  S.  METCALFE,  Jr. 

Subscribed  and  sworn  to  before  me  this  3d  day  of  January,  A.  D.  1882. 
[SEAL.]  A.  A.  PAXSON, 

Notary  Public. 

(Indorsed  :)  Sessinghans  vs.  Frost.  Affidavit  in  behalf  of  contestant.  Affidavit 
of  Lyne  S.  Metcalfe,  jr.  Filed  January  6,  1882.  N.  S.  Paul,  clerk  of  Committee  on 
Elections. 

In  the  matter  of  the  motion  to  suppressdeposition  of  contestant. 

Sessinghaus 

Frost. 

Before  the  Committee  on  Elections,  Forty-seventh  Congress. 

I,  John  R.  Farrar,  being  duly  sworn,  on  my  oath  say  that  I  am  an  attorney  at 
law  in  the  city  of  Saint  Louis ;  that  for  the  past  two  years  I  have  had  a  desk  in  the 
law  office  of  Lyne  S.  Metcalfe,  jr.,  attorney  for  Gust.  Sessinghaus;  that  I  have  known 
the  said  Metcalfe  intimately ;  that  my  desk  in  said  office  has  always  been  placed 
close  to  the  desk  of  said  Lyne  S.  Metcalfe,  jr  ,  that  at  various  times  during  the  months 
of  August,  September,  and  October  I  observed  Mr.  Metcalfe  examining  and  abstract- 
ing some  papers,  which  I  thought  were  papers  used  in  the  case  of  Sessinghaus  r. 
Frost ;  that  1  never  examined  or  in  any  way  handled  said  papers ;  that  I  never  knew, 
except  as  hereinafter  stated,  what  the  said  papers  were  or  that  they  were  the  official 
testimony  in  the  said  case  ;  that  Mr.  Metcalfe  seemed  to  be  remarkably  careful  of  the 
manner  in  which  he  kept  said  testimony ;  that  I  never  saw  said  papers  out  of  the  safe  in 
the  office  except  when  Mr.  Metcalfe  was  present  and  making  an  examination  of  them  ; 
that  I  never  saw  any  one  handle  said  papers  except  the  said  Lyne  S.  Metcalfe,  jr. ; 
that  the  said  papers  never  were  left  open  on  the  desk  of  said  Metcalfe  in  his  absence, 
or  in  any  other  part  of  said  office.  I  further  say  that  I  never  knew  the  said  papers 
was  official  testimony  in  the  said  case,  but  on  one  occasion  during  the  aforesaid  period 
the  said  Metcalfe  told  me  that  he  was  getting  up  the  brief  in  the  Sessinghaus-Frost 
case ;  that  the  papers  he  was  using  were  important  and  should  be  safely  kept,  and 
that  he  would  be  obliged  to  me  if  I  would  say  nothing  to  any  one  in  or  about  the  of- 
fice as  to  what  he  was  doing.  I  further  say  that  it  was  my  custom  to  nmain  in  the 
said  office  during  said  period  almost  constantly.  I  further  say  that  I  am  a  Democrat 
in  politics. 

JOHN  R.  FARRAR. 

Sworn  to  and  subscribed  before  me  this  4th  day  of  January,  1882.  My  commission 
expires  June  29th,  1885. 

[8KAL.]  FRANK  OBEAR, 

Notary  Public,  City  of  Saint  Louis. 

(Indorsed:)  Sessinghaus  r».  Frost.  Affidavits  in  behalf  of  contestant.  Affidavit 
of  John  R.  Farrar.     Filed  by  N.  S.  Paul,  clerk  Com.  on  Elections. 

GusTAVus  Sessinghaus,  contestant,  ) 

R.  Graham  Frost,  contestee,        j 

Before  Committee  on  Elections,  Forty-seventh  Congress. 

.   Now  comes   R.   Graham  Frost,  by  his  attorneys,  and  represents  that  on  this  day 
the  committ«'e  adopted  the  following  resolution  : 

^^  Resolved,  That  the  motion  of  the  contestee  for  the  snppr<'ssi>n  of  the  testimony  iu 


SESSINGHAUS    VS.    FROST.  429 

saifl  cause  bo  overraled  and  the  testimony  be  ordered  printed  without  prejudice  to 
either  party." 

This  coutestee  respectfully  protests  against  said  order  to  print,  as  the  same  cannot 
be  executed  without  prejudice  to  this  contestee,  for  the  reason  that  if  the  question  of 
tampering  with  the  depositions  is  still  open  the  very  evidence  of  the  changes,  alter- 
ations, and  erasures  will,  in  passing  through  the  printer's  hands,  be  destroyed  or  so 
blotted,  marked,  and  handled  that  no  satisfactory  investigation  can  be  had. 

This  contestee  protest  that  as  alterations  of  only  one  class  were  examined,  and  if 
it  is  proposed  to  investigate  the  many  others  not  examined,  that  it  should  be  done 
now  before  these  papers  are  worked  over  or  handled  by  others. 

Respectfully  submitted. 

R.  GRAHAM  FROST, 
By  DONOVAN  &  CONROY, 

His  AtVys. 

Washington,  Jan.  Vlth,  1882. 

(Indorsed:)  Sessiughaus  V8.  Frost.  Protest  against  the  order  to  print.  Filed  Jan'y 
17,  '82.    N.  S.  Paul,  cl'k  Com.  on  Elections. 

GUSTAVUS    SESSINGHAUS 
V8. 

R.  Graham  Frost. 

Contest  in  the  Forty-seventh  Congress. 

Frank  Kraft,  of  the  city  of  St.  Louis,  Mo.,  on  his  oath  states  that  ho  was  the  notary 
employed  by  contestant  and  contestee  in  the  above-eutitled  cause. 

That  all,  or  very  nearly  all,  of  the  transcript  of  the  testimony  taken  on  behalf  of 
the  contestant  was  made  by  my  several  assistants  and  from  short-hand  notes  dictated 
to  them  by  me. 

That  in  many  instances  breaks  and  gaps  were  left  in  the  transcript  so  turned  in  by 
them,  by  reason  of  their  imperfect  notes  or  inability  to  read  their  notes,  the  same 
being  left  to  be  supplied  by  myself  when  the  work  of  revision  was  instituted. 

That  this  imperfe  t,  partly  open,  uncompared,  and  uncorrected  copy  of  my  assist- 
ant's notes  was  the  lUiinuscript  s^ibmitted  to  Mr.  Metcalfe  and  none  other. 

That  thereafter,  the  same  being  returned  to  me  by  Mr.  Metcalfe,  I  began  and  com- 
pleted my  revision,  com[)aring  and  correcting  each  page  of  the  manuscript  from  my 
original  short-hand  notes. 

That  in  this  work  of  revision,  comparison,  and  correction  I  was  in  no  instance 
governed  by  the  marginal  notes  made  by  Mr,  Metcalfe,  giving  my  original  short-hand 
notes  the  preference,  save  and  except  only  in  the  spelling  of  proper  names. 

That  I  did  not  begin  to  revise  and  correct  the  depositions  in  this  case  until  after 
their  return  to  me  by  Mr.  Metcalfe,  and  having  once  entered  upon  this  work  I  used 
my  original  short-hand  notes,  erasing,  altering,  and  interlining  as  they  showed  the 
depositions  to  have  been  giveu,  and  immediately  thereafter  signing  and  sealing  each 
day's  proceedings;  and  no  one  single  page  of  the  depositions  given  in  this  cause  was 
ever  again  out  of  my  possession  until  it  was  forwarded  by  me  direct  to  the  Clerk  of 
the  House  of  Representatives,  at  Washington,  D.  C. 

That  the  depositions  of  the  contestee,  Mr.  Frost,  were  not  at  any  time  in  the  posses- 
sion of  Mr.  Metcalfe,  or  any  one  else  interested  in  this  cause,  until  they  were  opened 
and  inspected  at  Washington. 

That  in  determining  the  spelling  of  proper  names  occurring  in  the  depositions  given 
on  behalf  of  the  contestee,  Mr.  Frost,  I  made  reference  to  and  had  the  use  of  original 
memoranda  made  by  counsel  for  contestee  before  and  during  the  progress  of  taking 
said  depositions. 

FRANK  KRAFT. 

State  of  Missouri, 

City  of  St.  Louis,  ss: 
Subscribed  and  sworn  to  before  me  this  19th  day  of  January,  A.  D.  1882. 
[SKAL.]  CHRISTOPHER  P.  ELLERBE, 

Notary  Public. 

(Indorsed:)  Affidavit  of  Frank  Kraft.  In  case  of  Sessiughaus  ra.  Frost.  Referred 
to  2d  subcom.    Filed  Jan'y  24,  '82.     N.  S.  Paul,  cl'k  Com.  on  Elec's. 


430  DIGEST    OF    ELECTION    CAS-ES. 


Sessinghau 
Frost, 


AUS  ) 


Before  Committee  on  Elections,  47th  Congress. 


Frank  Kraft,  being  duly  sworn,  on  his  oath  states  : 

It  is  not  my  intention  in  giving  aflidavits  on  the  motion  to  suppress  to  change  in 
any  respect  the  affidavit  lirst  made  hy  me  in  this  matter.  As  I  stated  then,  I  desired 
the  use  of  memoranda  from  which  names  and  address  had  been  read  during  the  course 
of  the  depositions,  as  I  desired  to  correct  the  spelling  of  names  of  persons  and  of 
localities. 

When  I  called  on  counsel  for  contestee,  Mr.  Donovan,  he  allowed  me  to  take  what- 
ever I  needed  or  requested,  but  he  did  not  know  what  use  I  made  of  same,  or  give  me 
any  directions,  or  make  any  requests,  and  never  interfered  with  me  in  any  way 
whatsoever  in  the  faithful  performance  of  ray  duty  as  an  officer. 

Lyne  S.  Metcalfe,  jr.,  importuned  me  to  let  him  have  the  testimony  itself  as  tran- 
scribed, and  I  did  give  him  possession  of  it  for  review  and  correction  of  the  spelling 
of  proper  names.  I  trusted  to  his  integrity  to  write  correctly  the  names  of  persons 
and  localities  as  given  by  the  witnesses.  I  could  rely  on  my  notes  of  testimony  in 
all  respects  but  this,  and  hence  I  took  Metcalfe's  written  suggestions,  believing  when 
I  adopted  them  that  I  was  giving  names  and  localities  as  they  were  given  by  the  wit- 
nesses on  the  stand. 

FRANK  KRAFT. 

Statk  of  Missouri, 

City  of  St.  Louis,  88: 
Sworn  to  and  subscribed  before  me  this  thirtieth  day  of  January,  A.  D.  1882. 
Witness  my  hand  and  official  seal. 
[SEAL.]  C.  D.  GREENE,  Jr., 

Notary  Public. 

(Indorsed:)  47th  Congress.  Committee  on  Elections.  Gustavus  Sessinghaus  »*. 
R.  Graham  Frost.  Affidavit  of  Frank  Kraft,  made  Jan.  30,  '82.  Filed  Feb'y  1,  '82. 
N.  S.  Paul,  cl'k  Com.  on  Elec's. 


ROBERT  SMALLS  vs.  GEORGE  D.  TILLMAN. 

Fifth  Congkessionax  District  of  South  Carolina. 

Contestant  charges  that  the  vote  as  cast  was  not  truthfully  set  out  in  the  statement 
of  the  State  board  of  canvassers  ;  that  large  numbers  of  votes  cast  for  him  did  not 
enter  into  the  result  as  stated  therein ;  that  large  numbers  of  ballots  were  counted 
for  contestee  that  were  not  lawfully  cast  for  him ;  that  polls  were  returned  for 
him  that  should  have  been  rejected ;  that  a  large  number  who  desired  to  vote  for 
contestant  were  prevented  from  so  doing  by  reason  of  violence  and  intimidation ; 
and  that  United  States  supervisors  of  election  were  prevented  from  performing 
their  duties. 

Held,  That  no  legal  election  was  held  in  Edgefield  County,  because  the  will  of  the 
electors  was  suppressed  by  violence  and  intimidation,  and  the  return  must  be 
rejected. 

That  the  vote  of  the  other  connties  should  be  corrected  as  shown  by  the  evidence,  on 
account  of  intimidation  and  violence  and  stuffing  of  ballot-boxes. 


The  House  adopted  the  majority  report. 


SMALLS    VS.    TILLMAN. 


431 


June  29,  1882. 


-Mr.  Wait,  from  the  Committee  on  Elections,  submitted 
the  following 


RE  POUT: 


Your  committee^  having  nod  under  consideration  the  contest  for  a  seat  in 
the  House  of  Representatives  from  the  fifth  Congressional  district  of 
Scuth  Carolina,  submit  thefoUoicing  report: 

This  district  is  composed  of  the  counties  of  Colleton,  Beaufort,  Barn- 
well, Edgefield,  Aiken,  and  Hampton. 

The  couti'Stee,  George  D.  Tillman,  holds  the  seat  by  virtue  of  a  cer- 
tificate issued  to  him  by  the  governor,  predicated  upon  the  statement 
of  the  vote  of  the  district  made  by  the  State  board  of  canvassers,  which 
is  as  follows : 

FIFTH  CONGRESSIONAL  DISTRICT. 


Names  of  candidates. 


Counties. 


Colleton 3,475 


Beaufort. 
Barnwell  . 
Edgefield . 

Aiken  

Hampton  . 


State  of  South  Carolina, 

Office  of  Secretary  of  ^iate : 

I,  R.  M.  Sims,  secretary  of  state,  do  hereby  certify  that  the  above  is  a  trne  copy  of" 
the  vote  for  Congress  in  the  tifth  Congressional  district  in  said  State,  as  returned  by 
the  county  board  of  canvassers  for  the  counties  composing  the  fifth  Congressional 
district,  and  which  returns  are  now  of  record  in  this  office. 

Witness  mj  hand  and  the  seal  of  State,  at  Columbia,  this  16th  day  of  February^ 
A.  D.  1^81. 

[SEAL.]  R.  M.  SIMS, 

Secretary  of  State. 

The  contestant,  Robert  Smalls,  contends  that  this  does  not  represent 
the  vote  actually  cast  for  him,  but  that  he  is  entitled  to  a  large  number 
of  votes  that  were  not  counted  for  him  by  the  precinct  managers,  or^ 
after  having  been  counted  by  the  precinct  managers,  were  unlawfully 
rejected  by  the  county  board  of  canvassers,  and  did  not  therefore  enter 
into  the  result  as  stated  in  the  above  table.  And  he  further  contends 
that  a  large  number  of  ballots  were  counted  for  the  contestee  that  were 
not  lawfully  cast  for  him,  and  that  polls  were  returned  for  him  that 
should  have  been  rejected.  He  also  contends  that  by  violence  and 
intimidation  at  various  places  in  the  district  a  large  number  of  those 
who  desired  to  vote  for  him  were  prevented  from  doing  so,  by  reason  of 
which  polls  that  were  counted  for  contestee  should  now  be  rejected. 

It  is  claimed  by  the  contestee  that  the  State  board  of  canvassers  made 
up  their  statement  upon  which  his  credentials  are  based  from  the  state- 


432  .  DIGEST    OF    ELECTION    CASES. 

ment  of  the  county  board  of  canvassers,  and  that  this  was  the  only  legal 
<lata  necessary,  and  the  24th  section  of  the  act  of  1868  is  relied  upon 
as  sustaining  that  position.  Under  the  act  of  18C8  the  precinct  man- 
agers delivered  the  boxes  containing  the  ballots  and  the  poll-lists  to  the 
bounty  board  of  canvassers  within  three  days  a^er  the  election,  and  this 
board  counted  them  upon  the  following  Tuesday  and  made  up  their  state- 
ments, transmitting  them  by  mail,  one  each  to  the  governor,  comptroller, 
-and  secretary  of  State. 

In  view  of  a  contest  before  the  House  these  provisions  became  the 
subject  of  severe  animadversions,  and  in  1872  an  act  was  passed  pro- 
viding that  all  elections  shall  be  regulated  and  conducted  according  to 
the  rules,  principles,  and  provisions  therein  and  "  all  conflicting  "  acts 
are  repealed. 

Now  the  i)rincipal  jirovisions  of  this  law  are  : 

1st.  That  the  ballots  shall  be  counted  by  the  precinct  managers  as 
4soon  as  the  polls  are  closed,  and  that  the  boxes  containing  the  ballots 
«hall  be  sent  to  the  county  board ;  and,  2d,  that  a  statement  of  the  county 
board  of  canvassers  should  be  sent  by  a  special  messenger,  with  the  re- 
turns, ])oll-lists,  and  all  papers  appertaining  to  the  election,  addressed 
to  the  governor  and  secretary  of  state.  Under  the  law  of  18G8  the  bal- 
lots were  liable  to  be  tampered  with  after  the  polls  closed  and  during 
the  interval  before  they  were  counted,  and  the  county  board  of  canvass- 
«^^  was  wholly  without  check  upon  their  statement. 

The  act  of  1872  takes  from  the  county  board  the  counting  of  the  votes 
and  devolves  that  duty  upon  the  precinct  managers,  and  requires  that 
it  be  done  publicly  at  the  closing  of  the  polls.  It  also  places  a  check 
upon  the  aggregated  statement  of  the  county  board  by  requiring  that 
the  returns,  poll -lists,  and  all  papers  appertaining  to  the  election  be  sent 
by  a  special  messenger,  addressed  to  the  governor  and  secretary  of  state. 
To  use  the  terms  of  the  act  itself,  the  "principle"  contained  in  this 
*^  provision"  is  a  check  upon  the  opportunity  of  the  county  board  to 
l)erpetrate  fraud,  and  all  acts  in  any  way  conflicting  with  the  rules, 
I)riiicii)les,  and  provisions  are  repealed.  It  is  unquestionable  that  if 
the  State  board  is  to  make  up  its  statement  of  the  vote  of  the  district 
solely  upon  the  statements  of  the  county  boards,  aggregating  the  votes 
of  eaeh  of  the  counties,  there  is  no  check  whatever  upon  the  statements 
of  the  county  boards,  and  the  "  rules  and  principles  "  are  defeated,  and 
there  is  no  purpose  whatever  in  sending  by  a  special  messenger  "  the 
returns,  poll-lists,  and  all  papers  appertaining  to  the  election  "  to  the 
governor  and  secretary  of  state.  This  provision  is  a  part  of  a  remedial 
statute,  and  is  to  be  liberally  construed,  and  all  acts  "  in  any  way  con- 
flicting with  its  rules,  principles,  and  provisions"  are  repealed.  By  no 
•canon  or  rule  of  construction  can  this  provision  of  the  remedial  amenda- 
tory act  be  thrown  away. 

But  if  the  section  24  of  the  act  of  1868  is  not  thereby  repealed,  the 
two  acts  must  be  construed  in  pari  materia,  and  the  State  board  of  can- 
vassers should  make  up  their  statement  of  the  vote  of  the  district  from 
the  certified  copies  of  the  statements  made  by  the  board  of  county 
canvassers,  and  from  the  precinct  "  returns,  poll-lists,  and  all  papers 
api>ertaining  to  the  election." 

Tliese,  then,  become  together  the  data  upon  which  the  State  board  of 
canvassers  make  up  their  statement  whereon  the  certificate  is  based. 
If  it  is  based  upon  anything  else,  or  only  upon  a  portion  of  the  data 
prescribed  by  law,  it  is  without  legal  validity  as  regards  the  election 
of  a  member  of  Congress ;  and  this,  wholly  independently  of  the  ques- 
tion as  to  whether  this  is  done  fraudulently,  ignorantly,  or  is  a  mere 
easus  omissus. 


,        SMALLS    VS.    TILLMAN.  433 

The  party  relying  upon  such  a  certificate  must  prove  his  vote  aliunde. 
In  this  case  there  is  a  peculiar  and  most  forcible  illustration  of  the 
wisdom  of  this  requirement  that  the  precinct  return  and  poll-list  shall 
accompany  the  statement  of  the  board  of  county  canvassers,  for  this 
board  has  no  judicial  authority.  This  is  admitted  by  counsel  on  both 
sides.  Yet  in  two  counties  they  have  assumed  to  exercise  judical  pow- 
ers in  throwing  out  entire  boxes  and  in  not  counting  the  vote  polled  for 
Congressman  at  others,  and  without  any  pretense  of  cause.  And  in 
consequence  of  the  tiiilure  of  the  county  boards  of  these  counties  to 
send  to  the  governor  and  secretary  of  state  the  precinct  returns  and 
poll-lists,,  as  they  are  specifically  required  to  do  by  law,  the  official  data 
is  wanting  upon  which  to  add  the  vote  at  these  several  boxes.  In  the 
three  counties  of  Edgefield,  Colleton,  and  Barnwell  the  legal  data  by 
which  the  frauds  of  county  boards  of  canvassers  is  intended  to  be  de- 
tected and  corrected,  and  which  forms  an  important  part  of  the  basis 
on  which  the  member's  certificate  of  election  is  based,  has  been  deliber- 
ately withheld  and  suppressed.  There  is  no  official  data  by  which  to 
fix  the  vote  at  polls  which  have  been  fraudulently  omitted  from  the 
count,  in  contravention  of  the  plain  letter  of  the  statute,  and  the  con- 
struction placed  thereon  for  years  past  by  the  court  of  last  resort  in  that 
State.  And,  on  the  other  hand,  there  are  polls  which  should  be  rejected 
tram  the  count  for  gross  illegalities  and  fraud  in  the  management  thereof, 
and  others  for  violence  and  intimidation  ;  but,  in  consequence  of  the 
illegal  suppression  of  the  data  required  by  law,  it  is  impossible  to  as- 
certain how  these  polls  were  counted  in  the  statement  as  made  up  by 
the  State  board  from  the  aggregate  fiirnished  by  these  three  county 
boards. 

The  principle  is  correct  and  sound,  and  is  well  settled,  that  when  the 
reliability  of  the  official  statement  is  destroyed,  whether  for  fraud,  for 
ignorant  neglect  of  legal  duty,  or  because  made  up  from  insufficient, 
illegal,  or  fraudulent  data,  it  must  be  disregarded  as  evidence.  But  the 
vote  of  the  electors  is  not  lost  because  the  pretended  statement  of  it 
is  defective,  illegal,  and  unreliable,  but  it  may  be  proven  aliunde. 

It  is  clearly  established  that  the  State  board  had  not  "  the  precinct 
returns,  poll  lists,  and  all  other  papers  appertaiuing  to  the  election" 
before  it  at  the  time  it  made  up  its  statement  on  which  the  certificate 
of  election  was  given  to  coutestee ;  and  it  is  equally  well  established 
that  that  board  made  up  its  statement  merely  from  the  aggregated 
statement  of  the  county  board,  without  any  of  the  legal  data  with  which 
to  correct  their  errors  or  detect  their  frauds.  It  is  strenuously  claimed 
for  the  contestant  that  these  returns,  poll-lists,  &c.,  were  essential 
factors,  and  that  the  want  of  them  destroyed  the  validity  of  the  state- 
ment of  the  State  board  absolutely,  whilst  for  the  contestce  it  is  urged 
that  the  law  of  1868  remains  unchanged  as  to  the  State  board. 

The  committee  has  not  deemed  it  necessary  to  decide  this  legal  ques- 
tion, as  there  are  other  questions,  both  of  law  and  fact,  which  enter  into 
the  case,  and,  as  they  think,  control  it. 

The  contestant,  however,  claims  that  if  all  three  of  these  counties  are 
not  rejected  for  the  reason  above  contended  for  by  him,  that  still  the 
county  of  E<lgefield  must  be  for  another  reason,  viz,  that  by  reason  of 
violence,  intimidation,  and  fraud  practiced  at  the  various  precincts  of 
this  county  the  legal  vote  has  not  been  and  cannot  be  ascertained.  On 
this  proposition  the  committee  has  examined  the  record  most  carefully. 
Whilst  your  committee  would  be  glad  to  know  that  this  countj^  stood 
alone  in  this  respect,  it  is  true  that  the  si)irit  of  violence  and  lawless- 
H.  Mis.  35 28 


434  DIGEST    OF    ELECTION    CASE^. 

ness  was  rife  throughout  five  couuties  in  this  district,  everywhere  man- 
ifesting a  fixed  purpose  to  prevent  the  colored  people  from  voting  in 
the  first  place,  and  then  to  avoid  a  fair  and  honest  count  of  the  vote 
which  had  been  polled.  In  the  excesses  to  accomplish  these  ends  the 
adherents  of  the  contestee  in  this  county  knew  no  bounds.  Beginnings 
at  the  court-house,  and  extending  to  every  portion  of  it,  a  purpose  to 
disregard  the  law  iu  order  to  defeat  the  rights  of  the  majority  was 
boldly  carried  out.  At  Edgefield  Court-House  the  poll  is  proven  to 
have  been  counted  763  for  contestee  and  11  for  contestant.  If  we  elim- 
inate from  the  statements  of  the  contestee's  witnesses  their  opinions 
and  other  irrelevant  matter,  there  is  no  conflict  as  to  the  material  facts. 
The  poll  was  held  up-stairs  in  the  court-room,  and  one  of  the  double 
doors  was  securely  closed,  whilst  the  other,  18  inches  wide,  was  kept  by 
a  Democratic  guard,  so  that  those  Republicans  who  succeeded  in  run- 
ning the  gauntlet  of  the  one  hundred  Democrats  who  thronged  and 
crowded  the  staircase  were  held  here  and  subjected  to  further  insult 
and  violence  until  they  could  struggle  out,  with  their  clothes  cut,  whilst 
the  gallery  or  porch  over  the  outside  entrance  was  tilled  with  Demo- 
crats armed  with  brickbats,  and  the  Masonic  Hall  opposite  was  occu- 
pied by  a  military  company,  the  Edgefield  Rifles.  To  call  this  an  elec- 
tion is  a  reflection  on  American  institutions. 

At  Mount  Willing  the  poll  was  held  inside  of  a  house,  the  entrance 
guarded  by  Democrats.  "Republicans  were  kept  back,  Democrats  ad- 
mitted," until  the  Democrats  had  all  voted,  when  a  party  of  mounted 
Democrats  rode  up,  and,  opening  fire,  drove  the  Republicans  from  the 
poll.  Two  hundred  voters  were  driven  off,  and  the  supervisor  prevented 
from  discharging  his  duty  (p.  193). 

At  Meeting  Street  (p.  207)  and  Cheatham's  Store  (p.  204)  the  same 
course  was  adopted,  and  at  both  of  them  the  supervisor  was  prevented 
from  discharging  his  duty. 

At  George's  Cross-Roads  the  Republicans  were  kept  back  by  mounted 
Democrats  crowding  the  polls,  whilst  at  Pleasant  Lane  contestee's  own 
witness  admits  that  there  were  as  many  as  fifty  Republicans  at  the 
polls,  but  that  only  one  Republican  vote  was  counted.  At  Red  Hill 
and  Rich ardsonville  the  supervisors  weie  interfered  with  and  prevented 
from  discharging  their  duties,  their  commissions  and  papers  taken  from 
them,  and  they  were  driven  away,  whilst  the  voters  were  hindered  by  force 
from  casting  their  ballots.  At  Landrum's  Store  the  supervisor's  poll-list 
was  taken  away  from  him  and  76  fraudulent  ballots  stuti'ed  into  the  box, 
whilst  at  Johnston's,  after  keeping  the  Republicans  from  the  polls  by 
crowding  them  until  about  two  o'clock,  the  Democrats  commenced  a 
general  disturbance,  ran  off  the  supervisor,  and  opened  fire  on  the  Re- 
publicans, in  which  a  colored  Republican  was  shot  in  the  head  and  his 
dead  body  left  on  the  ground.  At  this  poll  800  voters  were  driven  off.  Dur- 
ing the  day  squads  of  armed  Democrats  were  kept  riding  from  precinct  to 
precinct,  under  the  pretended  apprehension  that  the  Republicans  were 
going  to  seize  the  polls,  but  their  conduct  and  bearing  leave  no  room 
for  doubt  that  their  sole  purpose  was  to  prevent  the  supervisors  from 
acting  and  to  awe  and  intimidate  the  voters  and  drive  them  away  from 
the  polls ;  and  they  were  successful  in  their  efforts  to  tbis  end. 

At  Tolbert's  Store  the  supervisor  was  not  allowed  in  the  room  where 
the  poll  was  held;  armed  bodies  of  Democrats  crowded  the  polls,  ob- 
structed the  electors,  and  150  were  prevented  from  voting. 

At  Red  Hill  the  supervisor's  commission  and  papers  were  taken  from 
him  and  destroyed.  With  the  boxes  containing  the  ballots,  and  from  all 
but  one  of  them  the  poll-lists  also,  before  them  the  county  board  refused 


SMALLS    VS.    TILLMAN.  435 

to  count  or  include  in  the  statement  the  vote  of  five  precincts,  to  wit, 
Etheridge's  Store,  Perry's  Cross- Roads,  Coleman's  Cros-Roads,  Caugh- 
men's  Store,  and  Liberty  Hill.  In  this  they  clearly  transcended  their 
powers  under  the  law.  The  testimony  most  conclusively  shows  that  in 
the  county  the  whites  were  Democrats  and  the  colored  people  were 
voting  or  trying  to  vote  the  Republican  ticket.  The  testimony  shows 
that  3,020  Republicans  were  at  the  polls  in  this  county  anxiously  trying 
to  vote  and  who  were  prevented  by  force  from  doing  so.  The  contest 
was  to  keep  the  colored  people  from  voting,  for  the  nature  of  their  vote 
was  unquestionable.  The  census  taken  the  year  of  this  election  shows 
whites  over  21  years,  3,553;  colored,  5,648.  Yet  it  is  claimed  the  con- 
testee  received  6,467  votes  and  the  contestant  only  1,046.  Had  every 
white  voter  in  the  county,  therefore,  actually  voted  for  the  contestee  he 
could  not  have  gotten  this  vote  by  2,877,  and  the  utter  absurdity  of  the 
proposition  that  this  or  any  co'nsiderable  number  of  colored  people 
voted  for  the  contestee  is  fully  established  by  the  testimony ;  and  this 
fact  also  illustrates  the  conclusiveness  of  the  proofs  which  have  in- 
duced your  committee,  after  a  thorough  and  careful  consideration  of 
the  testimony,  to  conclude  that  there  was  no  legal  and  valid  election 
held  in  the  county  of  Edgefield  on  the  2d  of  November,  1880.  That  the 
will  of  the  electors  was  suppressed  by  violence  and  intimidation,  and 
that  the  pretended  count  and  canvass  of  the  vote  is  involved  in  an  inex- 
tricable confusion  of  fraud,  and  that  the  records  which  should  establish 
the  truth  in  regard  to  it  have  been  illegally  suppressed. 

REFERENCES   TO   TESTIMONY  IN  EDGEFIELD   00. 

As  to  Edgefield  Court- House : 
Testimony  of  W.  E.  Lynch,  p.  432.  •' 

Testimony  of  A.  J.  Lee,  pp.  433, 434. 
Testimony  of  Paris  Simpkins,  pp.  443, 459. 
Testimony  of  Norman  Youngblood,  pp.  453,  456. 
Testimony  of  L.  Cain,  p.  457  et  seq. 
Testimony  of  Jesse  Jones,  p.  465. 
Testimony  of  M.  O.  Sheppard,  pp.  498,  500. 
Testimony  of  D.  R.  Ikirisoe,  pp.  528,  529. 
Testimony  of  Lewis  Jones,  pp.  517, 518, 519, 521. 
Testimony  of  G.  W.  Wise,  p.  536. 
Testimony  of  Charles  Holmes,  p.  694. 
Testimony  of  Wiley  Weaver,  p.  690. 
Testimony  of  R.  T.  Anderson,  p.  504. 

Mount  Willing: 
George  Valentine,  p.  417. 
David  Graham,  p.  438. 

Meeting  Street: 
W.  T.  Tillman,  pp.  207,  430. 

Cheatham's  Store : 
Brister  J.  Yeldell,  p.  428. 
Harry  Oliphant,  p.  451. 
John  Brunson,  i>.  538. 
D.  I.  Mitchell,  p.  701. 

George's  Cross-Roads : 
Westley  Long,  pp.  424,  425. 

Red  Hill : 
Anderson  Carter,  p.  442. 

Richardsonville : 


436  DIGEST    OF    ELECTION    CASES. 

Richmond  Morley,  p.  435. 

Pleasant  Lane : 
James  P.  Norris,  p.  541. 

Talbert's  Store : 
Jjewis  W.  Collins,  p.  441. 

Landrum's  Store :  •  , 

Nathan  Sullivan,  p.  82. 

Johnston's : 
William  Scott,  p.  546. 
Willis  Vermillion,  p.  85. 
Butler  Burt,  p.  86. 
■John  Hammond,  p.  87. 

EDGEFIELD   C.  H. 

W.  E.  Lynch  testifies  (page  432)  as  follows : 

Was  one  of  the  commissioners  of  election  for  Edgefield  County. 

Q.  To  what  political  party  did  the  managers  belong? — A.  Mostly  to  Democrats. 

Q.  Were  any  Republicans  appointed  ? — A.  Not  that  I  know  of. 

Q.  Did  or  did  not  the  board  of  commissioners,  as  far  as  possible,  select  Democrats 
>for  managers  ? — A.  They  did. 

Q.  Acting  as  a  board  of  county  canvassers,  did  the  commissioners  return  all  the  re- 
turns or  ballots  from  each  and  every  precinct  in  the  county  t — A.  They  did  not. 

Q.  How  many  and  what  polls  were  not  canvassed! — A.  They  were  five — Ethridge'a 
Store,  Perry's  Cross-Roads,  Coleman's  Cross-Roads,  Caughmau's  Store,  Liberty  Hill. 

Q.  Why  were  those  polls  not  counted? — A.  On  account  of  irregularities. 

Q.  In  what  did  those  irregularities  consist  ? — A.  Managers  failed  to  make  a  return 
«r  send  any  poll-list. 

Q.  Were  these  ballots  counted  by  the  board  of  county  canvassers  ? — A.  Not  by  the 
■  county  board. 

G.  Do  you  know  how  many  ballots  these  ballots  or  either  of  them  contained  ? — A. 
No,  sir. 

Q.  Did  you  see  the  boxes  opened? — A.  I  did. 

Q.  What  was  the  appearance  of  these  boxes  when  opened  ? — A.  Nothing  in  them 
but  ballots ;  one  was  full,  other  partially  filled. 

Q.  Under  what  law  did  the  board  act  in  rejecting  these  polls? — A.  I  don't  know 
■what  law ;  but  we  wire  advised  that  we  had  nothing  to  go  on. 

Q.  Who  gave  you  this  advice  ? — A.  I  don't  remember  now. 

Q.  Were  they  Democrats  or  Republicans? — A.  Democrats. 

.Andrew  J.  Lee  testifies  (page  433)  as  follows : 

■Q.  Did  you  hold  any  official  position  at  the  late  election,  and,  if  so,  what? — A.  I 
"was  one  of  the  commissioners  of  election  for  Edgefield  County. 

Q.  From  what  political  party  were  the  commissioners  of  election  appointed  ? — A. 
The  Democratic. 

Q.  Were  any  Republicans  appointed  ? — A.  None. 

Q.  At  the  canvassing  of  the  votes  by  the  commissioners,  were  any  polls  not  can- 
vassed ? — A.  No,  sir;  five  were  uoO  counted;  don't  remember  the  polls. 

Q.  Why  were  they  rejected  ? — A.  Because  they  were  not  returned  according  to  law. 

Q.  Was  there  any  other  reason  assigned  by  either  of  the  commissioners,  or  any 
other  person  in  the  presence  of  the  board,  why  you  should  not  count  them  ? — A.  None 
Skt  ail. 

Q.  When  these  boxes  were  opened  (five)  what  was  their  appearance  ? — A.  Some  did 
not  have  their  returns  in  them,  and  one  had  nothing  but  ballots  in  it ;  one  was  nearly 
full,  the  others  about  half  full. 

And  on  page  434  as  follows  : 

Q.  What  ticket  did  you  vote  at  the  last  election? — A.  I  did  not  vote. 

Q.  What  ticket  did  you  vote  1878  ? — A.  I  did  not  vote. 

Q.  What  ill  1876?— A.  The  Republican. 

Q.  Why  did  you  not  vote  at  the  last  election? — A.  Because  the  generality  of  tli 
Cepublicans  did  not  vote,  and  I  did  not  want  to  after  they  all  left. 

Q.  Was  not  your  Republicanism  strong  enough  to  cause  you  to  vote  that  day  ? — A. 
Yes,  sir,  but  I  did  not  think  it  would  do  any  good.  I  was  invited  to  vote  that  even- 
ing. 


SMALLS    VS.    TILLMAN.  437 

Q.  Why  did  the  Republicans  not  vote  ? — A.  The  place  -vras  crowded  that  morning 
hy  Democrats. 

Q.  Could  they  get  to  the  polls? — A.  Could  not  get  there  till  the  Democrats  got 
away. 

Q.  Were  there  many  Republicans  present  ? — A.  I  thought  about  two  thousand  men 
that  morning. 

Q.    Did  many  of  them  go  away  without  voting  T — ^A.  The  greater  number :  nearly  all. 

Q.  How  many  voted  at  Edgefield  pollT — A.  I  don't  remember  but  very  few. 

Q.  Where  was  the  poll  held  T — A.  I  don't  know. 

Q.  Did  you  attempt  to  go  into  the  poll? — A.  No,  sir. 

Q.  Were  any  men  present  in  uniform  or  red  shirts t — A.  Yes,  sir;  some  red  shirts. 

Q.  Many  T— A.  About  half  the  number  of  Democrats  that  were  in  the  village  had 
on  red  shirts. 

Q.  About  how  many  Democrats  ? — A.  Three  or  four  hundred. 

Paris  Simpkins  testifies  (p.  443)  as  follows : 

Question.  Were  j(^  in  the  town  of  Edgefield  on  the  night  before  the  last  election  ? — 
Answer.  I  was. 

Q.  Did  anything  unusual  occur  during  that  night? — A.  Something  certainly  very 
nnuRual  for  this  community.  There  were  quite  a  number  of  armed  men  in  the  town 
of  Edgefield,  who  paraded  up  and  down  the  streets,  all  mounted,  firing  off  their  pistols,, 
yelling  in  the  most  hideous  manner.  I  was  on  the  street  myself,  and  desired  to  get 
back  to  my  home,  but  was  afraid  to  go  back  on  the  frant  street,  as  I  came,  for  fear 
that  I  might  be  recognized  and  shot ;  not  that  I  had  done  anything  to  be  shot  for,  but 
knowing  that  I  was  regarded  a  leader  of  the  Republicans  of  the  county.  It  was  be- 
cau.se  of  this  position  that  I  was  apprehensive  of  danger. 

Q.  How  long  did  this  firing  continue  f — A.  It  continued  almost  incessantly  for  five 
or  teu  minutes. 

Q.  What  was  the  object  of  it  ? — A.  It  occurred  to  me  the  object  was  to  effectually 
intimidate  the  Republicans  of  this  community.  At  any  rate,  I  would  say  that  I  was 
verv  a  ffected  bv  it. 

(Olijected  to.') 

Q.  Were  these  men  in  bodies  or  singly  ? — A.  They  generally  moved  in  solid  bodies. 

Q.  Did  any  one  appear  to  be  in  command  ? — A.  Yes,  sir;  they  were  evidently  com- 
manded by  some  one,  because  I-could  hear  the  orders  given.    • 

Q.  About  how  large  was  this  body? — A.  I  would  judge  that  there  were  between 
three  and  four  hundred  men. 

Q.  Was  this  before  or  after  dark  ? — A.  Just  after  dark. 

Q.  Could  you  distinguish  them  by  their  faces  or  clothing? — A.  I  could  not  by  their 
faces,  but  by  the  flashes  of  pistols  could  tell  that  some  had  on  red  shirts. 

Q.  Do  you  know  if  these  men  resided  in  the  town  of  Edgefield  ? — A.  They  were  all 
strangers  to  me. 

Q.  Were  yon  present  at  or  near  the  poll  in  Edgefield  Court-House  on  the  day  of 
election  ? — A.  I  was. 

Q.  State  what  time  you  arrived  at  the  poll,  how  long  you  remained,  and  all  that 
occurred  there  or  in  the  vicinity  that  you  saw  or  heard  during  the  day. — A.  I  arrived 
near  the  poll  about  7  o'clock.  I  then  understood  that  the  box  was  up  in  the  court- 
house. The  entrance  to  where  box  was  was  densely  packed  by  Democrats,  who  kept 
their  positions,  which  rendered  it  utterly  impossible  for  me  or  any  other  Republican 
to  go  in  and  vote  without  precipitating  a  riot  or  row  in  trjnng  to  elbow  his  way 
through  the  crowd.  I  heard  such  words  as  these:  "Boys,  hold  your  positions"; 
"  Stand  firm."  I  also  saw  some  Democrats  on  the  ground  pitching  rocks  or  brickbats 
up  to  the  other  Democrats  who  were  upon  the  porch  of  the  court-house.  Of  course 
they  caught  them  and  held  them.  There  appeared  to  be  imaginary  line  drawn  just 
in  front  of  the  court-house  down  to  the  ground.  There  were  Democrats  who  walked 
up  and  down  this  line,  and  as  the  Republicans  would  come  toward  the  court-house 
they  were  told  just  here  not  to  go  any  further.  I  noticed  this  matter  with  peculiar 
interest.  There  appeared  to  be  an  officer  in  charge  of  line.  The  officer  who  I  allude 
to  was  dressed  in  a  very  peculiar  suit  of  clothes.  I  have  no  recollection  of  ever  seeing 
such  a  suit  before.  As'  the  Republicans  came  into  town  it  seemed  to  cause  quite  a 
stir  among  the  Democrats  in  and  around  the  polling  place.  I  saw  quite  a  number  of 
Democrats  rendezvousing  in  Masonic  Hall ;  they  carried  their  guns  or  rifles  with  them.. 
They  did  not  go  up  in  a  body,  but  went  two  and  three  together.  Several  times  dur- 
ing the  morning  there  seemed  to  be  some  excitement;  then  I  could  see  some  of  these 
men  who  were  in  the  ball  rush  to  the  windows  in  a  menacing  attitude.  I  then  left 
the  vicinity  of  the  box,  and  I  urged  other  Republicans  to  leave  also,  as  I  was  sure 
they  could  not  have  a  lair  expression  at  the  ballot-box  of  their  choice  from  what  1 
bad  seen.     Thev  did  leave  without  voting. 


438  DIGEST    OF    ELECTION    CASES. 

On  cross  examination  as  follows  (p.  459): 

Q.  You  said  you  knew,  from  the  coudiict  of  Republicaus  generally,  and  from  the  fiewjt 
that  you  knew  some  of  the  leaders  of  clubs  here  ou  election  day,  that  the  2,000  men 
were 'Republicans.  Tell  me  the  differeuce  in  conduct  of  Democrats  aud  Republicans. — 
A.  The  only  line  of  distinction  that  I  can  draw  is  that  the  Democrats  usually  wear 
the  red  shirt ;  and  further,  all  the  white  men  are  usually  mounted,  and  the  most  of 
them  are  generally  armed  and  always  in  charge  of  the  ballot-box,  and  they  generally 
congregate  together,  while  the  Republicaus  are  colored  men,  with  but  very  few  ex- 
ceptions, and  they  usually  stick  together. 

Norman  Youngblood  testifies  (p.  453)  as  follows : 

Q.  When  were  the  most  people  about  the  polls  ? — A.  About  nine  o'clock. 

Q.  How  many  people  were  there  at  this  time! — A.  From  twenty-five  to  twenty- 
8e\  en.  hundred,  I  judge  ;  around  the  park  and  stores  were  covered  with  them,  and  in 
the  park. 

Q.  What  part  of  this  crowd  were  Republicans  and  what  part  Democrats  f — A.  Aboiit 
twenty-five  hundred  Republicans  and  about  one  hundi'ed  and  fifty  Democrats. 

Q.  How  were  the  Republicans  dressed  f — A.  In  ordinary  clothes. 

Q.  And  the  Democrats  ? — A.  About  one-third  in  red  shirts,  and  one  in  a  calico  suit, 
and  the  rest  were  in  citizens'  clothing. 

Q.  Did  you  see  any  arms  about  the  poll  ?  If  so,  who  had  them,  and  what  were 
they? — A.  Yes,  sir;  a  double-barreled  shot-gun  ou  the  court-house  steps,  a  sixteen- 
ehooter  under  the  porch ;  I  saw  four  pistols  in  men's  hands,  and  the  best  quantity  of 
Democrats  had  pistols  on  them  ;  aud  I  saw  two  more  shot-guns  on  the  street,  aud  I 
saw  two  or  three  dozen  Remington  riHes. 

Q.  Who  had  these  guns  ?— A.  The  people ;  the  ones  I  take  to  be  Democrats. 

Q.  Did  the  Republicans  have  arms  ? — A.  Yes ;  I  saw  two  pistols. 

Q.  Did  you  vote  ? — A.  No,  sir. 

Q.  Why  not  f — A.  There  was  a  line  drawn  across  before  the  steps  in  front  of  the 
poll ;  crowd  of  Democrats  were  on  the  steps  clogging  them  up,  and  a  man  with  a  cal- 
ico suit  on  was  in  front  of  the  steps,  and  whenever  a  colored  man  would  try  to  vote 
he  would  tell  them  to  stand  back,  you  can't  vote  here ;  the  white  people  pushed 
through  the  crowd  and  got  to  the  polls. 

Q.  Were  any  persons  assisting  this  man  to  keep  the  colored  people  awayf — A.  A 
good  many  white  men  were  in  iront  of  him  on  the  ground,  who  also  would  tell  the 
colored  people  to  stand  back,  you  can't  vote  here  yet. 

And,  redirect  (p.  456) : 

Q.  On  your  cross-examination  you  said,  in  answer  to  a  question  "Could  yon  have 
voted  in  the  afternoon?"  that  you  could  if  you  had  a  mind  to  go'  through  men  that 
you  thought  would  not  interfere  with  you.  What  do  you  mean  by  this  ? — A.  I  had 
been  sure  men  like  the  citizens  here  in  Edgefield  village  were  up  there,  and  all  the 
men  like  them,  I  would  have  gone  up  and  voted.  As  objection  had  been  made  to  the 
Republicans  to  stand  back,  and  seeing  the  angry  people  on  the  steps  that  I  did  not 
know,  I  would  not  go  up  there. 

L.  Cain  testifies  (p.  457)  as  follows: 

Q.  Could  Republicans  hold  public  meetings  without  fear  or  molestation  in  this 
county  ? 

(Objected  to  as  matter  of  opinion  except  as  to  himself.) 

A.  As  to  myself  I  was  afraid  to  hold  iiublic  meetings,  aud  was  told  by  prominent 
Republicans  that  they  thought  a  mass-meeting  would  be  treated  by  Democrats  just  as 
they  were  in  1876.  It  is  well  known  that  our  meeting  on  12th  of  August,  1876,  was 
broken  up  by  the  Democrats,  and  that  we  held  no  other  mass-meeting  during  that 
campaign  save  one,  which  was  attended  by  a  United  States  commissioner  and  United 
Stat«8  marshals.  When  the  last  meeting  was  held  there  were  six  or  seven  companies 
of  United  States  troops  in  the  town. 

Q.  In  what  way  the  Republicans  organized  during  the  last  campaign  ? — A.  They 
were  organized  into  Garfield  aud  Arthur  clubs.  I  had  about  48  of  these  clubs  in  the 
county,  ranging  in  number  from  25  to  200  in  each  club.  These  clubs  were  all  over 
the  county,  having  been  organized  by  precinct  chairmen  by  my  direction. 

Q.  Have  you  any  means  of  knowing  how  many  Republicans  belonged  to  and  acted, 
with  these  clubs? — A.  I  have,  as  a  list  from  each  club  was  brought  me  by  the  precinct 
chairman. 

Q.  Did  you  attend  any  of  these  clubs? — A.  Yes,  sir;  I  did;  I  attended  about  five 
of  them. 

Q.  From  the  party  organization  and  your  sources  of  information  and  your  knowledge 
of  the  voters  of  Edgefield  County,  what  result  did  you  have  reason  to  expect  on  the 
day  of  the  election  ? 


SMALLS    VS.    TILLMAN.  439 

(Objected  to.) 

A.  i  had  reason  to  expect  a  great  Republican  triumph,  as  a  great  many  Democrats 
had  told  me  previous  to  the  election  that  every  man  would  be  allowed  to  vote,  and  that 
there  would  be  a  fair  count;  this  was  my  belief  before  the  appointment  of  managers 
hy  the  commissioners  of  election,  but  when  they  met  and  appointed  all  Democrats, 
thereby  giving  Republicans  no  representation  on  the  boards  of  managers,  my  opinion 
became  somewhat  changed. 

Q.  Was  there  anything  in  the  numerical  strength  of  the  two  parties  which  caused 
you  to  expect  the  Republicans  to  carry  the  county  ? — A.  I  had  no  means  of  knowing 
the  numerical  strength  of  the  Democrat  party,  except  what  was  furnished  by  the  cen- 
sus of  1880 ;  that  census  showed  the  colored  men  in  Edgefield  would  be  about  2,000  ma- 
i'ority,  and  that  colored  men  in  Edgefield  are  Republican  ;  and  I  am  satisfied,  if  they 
ad  been  allowed  to  vote  untrammeled,  would  have  been  a  larger  RepublLoan  vote 
polled  in  Edgefield  in  1><80  than  was  polled  in  any  jirevious  election. 

(Objected  to  as  a  matter  of  opinion.) 

Q.  Were  you  in  the  town  of  Edgefield  on  the  night  before  the  election? — A.  I  was. 

Q.  Did  anything  unusual  happen  that  night;  if  so,  what? — A.  I  came  in  town 
about  one-half  hour  by  sun  ;  at  that  time,  and  until  about  8  o'clock,  white  men,  dressed 
in  red  shirts  and  mounted,  came  in  from  two  or  three  directions ;  some  had  guns,  some 
pistols;  about  dark  quite  a  number  of  these  men  took  possession  of  the  court-house ; 
soon  after  they  went  in  I  heard  the  firing  of  pistols  and  guns  from  the  porch  of  the 
court-house;  wheu  this  took  place  I  thought  it  advisable  for  me  to  leave  for  honie, 
and  did  so. 

Q.  Were  you  in  town  on  the  day  of  election  ? — A.  I  was. 

Q.  Were  the  voters  allowed  to  cast  their  ballots  freely  and  without  molestation  from 
any  one;  and  if  not,  how  and  by  whom  were  they  prevented? — A.  If  a  voter  was 
known  to  be  a  Democrat  he  had  no  trouble  whatever  in  getting  to  the  x)olls,  but  up  to 
21  minutes  after  8  o'clock  not  a  Republican  vote  had  been  polled.  Why  I  am  so  pre- 
cise about  the  time,  I  met  General  Butler  near  the  court-house  steps  and  complained 
to  him  about  Republicans  being  kept  from  voting  ;  he  said  it  was  early  yet,  I  suppose 
every  man  will  get  to  vote.  I  told  hi(u  the  Democratic  party  had  been  voting  all  the 
morning.  I  then  pulled  out  my  watch  and  showed  him  what  time  it  was  ;  he  looked 
at  his  watch  and  he  too  was  21  minutes  past  8. 

Q.  Did  you  see  any  arms  anywhere  near  the  polls  that  day? — A.  Yes  ;  I  saw  quite 
a  number  of  pistols  in  the  hands  of  red-shirters  while  the  voting  was  going  on,  and 
from  the  ])orch  and  windows  of  the  Masonic  Hall,  the  piazza  of  the  printing  office, 
from  the  store  door  now  occupied  by  the  joint-stock  company,  and  on  thestreets,  were 
quite  a  number  of  white  men  with  gnus  and  pistols  in  their  hands ;  most  of  these  men 
Jiad  on  red  shirts. 

Q.  Do  you  know  of  any  persons  who  did  not  or  could  not  vote  that  day  ;  if  so,  how 
were  they  prevented? — A.  Quite  a  number  of  Republicans,  myself  among  them,  went 
near  The  court-house  in  order  to  get  to  vote  ;  when  within  about  five  or  six  yards  of 
the  court-house  steps  I  was  shown  a  line  that  had  been  drawn;  the  red  shirters  were 
ou  the  court-house  side  of  the  line,  and  quite  a  number  of  colored  were  on  the  other 
side.  I  walked  to  the  line  to  see  if  they  would  allow  me  to  cross,  and  was  told  by  a 
red-shirter,  who  appeared  to  be  a  sentinel,  to  stand  back.  I  went  back  about  tweuty- 
fi  ve  or  thirty  yards,  and  remained  there  for  two  hours,  I  guess,  watching  the  progress  of 
the  election.  Daring  this  period  about  six  or  eight  colored  men  went  up,  three  at  a 
time  ;  seeing  they  staid  up  there  so  long,  I  timed  three  of  them  ;  they  staid  20  minutes 
by  the  watch.  About  12  o'clock  a  row  took  place  between  a  white  and  colored  man, 
and  believing  that  I  could  not  vote  there  with  safety,  and  seeing,  too,  that  one  of  the 
colored  men  who  had  been  up  had  his  coat  cut  all  to  pieces  with  knives,  I  left  there 
and  returned  no  more  during  the  day;  I  did  not  vote. 

Q.  How  many  Republicans  were  at  the  polls  at  any  time  while  you  were  there  ? — A. 
Well,  sir,  1  a])proximate  them  at  2,000. 

(Objected  to.) 

Jesse  Jones,  United  States  supervisor  for  Edgefield  Court-House,  gives 
the  following  account  of  the  election  at  that  precinct  (see  p.  465) : 

Q.  Where  was  the  box  placed  ?— A.  Upstairs,  in  the  court-room,  within  the  railing, 
about  fifteen  feet  from  door;  there  is  a  passage-way,  about  four  feet  long,  from  the 
porch  door  to  the  court-room  door. 

Q.  How  wide  is  the  porch  ?— A,  About  four  or  five  feet  wide. 

Q.  Wheu  the  poll  opcDed  how  many  people,  and  to  what  parties  did  they  belong, 
who  were  inside  the  polling  places,  other  than  the  managers,  clerk,  and  supervisors? 
— A.  When  the  poll  opened  there  were  no  others  inside  the  rail ;  about  twenty  or 
twenty-five  inside  the  room — all  Democrats. 

Q.  At  what  time  did  you  arrive  at  the  poll  ?— A.  About  half  past  four  in  the 
morning. 


440  DIGEST    OF   ELECTION    CASES. 

Q.  Were  any  persons  in  the  court-house  then,  on  that  floor  ? — A.  Yes,  sir. 

Q.  Do  you  know  how  many,  and  who  they  were  ? — A.  1  suppose  about  one  hundred  ; 
all  Democrats. 

Q.  When  the  poll  opened,  were  there  any  persons  in  the  room  where  the  box  was, 
in  uniform  of  any  kind,  or  with  arms  of  any  description? — A.  There  was,  Democrats, 
with  red  shirts ;  I  suppose  about  ten  or  fifteen  in  number  with  arms;  about  forty  or 
fifty  with  red  shirts  on ;  some  double-barrel  shot-guns,  some  pistols. 

Q.  Were  any  persons  within  the  rail  with  uniforms  on  after  poll  opened  ? — A. 
No,  sir. 

Q.  Were  any  persons  within  the  rail  who  had  arms?— A.  There  were  arms  inside 
the  rail,  in  the  jjrisoners'  dock,  about  one  foot  from  the  iallot-box. 

Q.  What  kind  were  they,  and  to  whom  did  they  belong  ? — A.  There  were  three 
double-barrtl  shot- gun  a  ;  I  cannot  say  to  whom  they  belonged. 

Q.  How  long  did  these  guns  remain  there  ? — A.  About  two  or  three  hours. 

Q.  Who  removed  them  ? — A.  I  saw  some  gentlemen  come  in  a:nd  take  them  out. 

Q.  Do  you  know  who  caused  their  removal  ? — A.  It  was  caused  by  some  man  on  the 
streets  raising  a  row  by  drawing  a  pistol ;  and  they  were  taken  out  by  parties  who 
were  in  the  room. 

Q.  Were  the  parties  who  took  them  out  election  officers? — A.   Yes,  sir. 

Q.  What  officers  were  they  ? — A.  Dem,ocrati<!  supervisors. 

Q.  Do  you  know  if  either  of  these  guns  belonged  to,  or  was  in  custody  of,  either  of 
the  managers  or  the  clerk  ? — A.  I  can't  say. 

Q.  How  many  doors  between  the  porch  and  ballot-box? — A.  Two  doors. 

Q.  Were  these  doors  kept  open  all  day  ? — A.  Outside  door  was  a  double  door,  each 
of  which  was  about  one  and  a  half  feet  wide ;  only  side  of  door  was  open,  the  other 
was  shut ;  the  inside  door  was  open  ;  the  inside  one  was  a  gate  to  a  railing. 

Q.  Did  you  keep  a  poll-list  ? — A.  No,  sir. 

Q.  Why  not? — A.  I  did  not  think  it  would  be  safe  for  me  to  do. 

Q.  Why  did  you  think  it  unsafe? — A.  Because,  if  they  had  seen  me  keeping  a  poll- 
list  I  would  not  have  been  allowed  to  stay  there  (objected  to  it  as  matter  of  opinion), 
as  I  was  told  by  Democrats  if  I  attempted  to  make  a  report  I  would  not  be  allowed 
to  act  as  supervisor. 

(Objected  to.) 

Q.  Can  you  say  how  many  voters  voted  that  day  ? — A.  About  seven  hundred  and 
sixty-three  or  seveu  hundred  and  sixty-nine. 

Q.  How  many  colored  men  voted  ? — A.  About  fifteen. 

Q.  How  many  Republican  votes  counted  by  the  managers? — A.  Eleven. 

On  page  466 : 

Q.  Did  all  the  voters  have  free  access  to  the  polls  ? — A.  Did  not,  because  one  side 
the  front  door  was  barred,  and  the  Democrats  stood  on  the  porch  with  pistols  and  said 
that  no  damn  negroes  should  vote  there. 

Q.  How  long  did  this  continue? — A.  It  continued  till  4  o'clock  in  the  afternoon. 

Q.  Did  this  in  any  way  jirevent  any  voters  from  approaching  the  ballot-box  and 
voting  ? — A.  It  did.  Republicans. 

Q.  How, then, did  the  eleven  Republican  votes  get  into  the  box? — A.  They  came 
up  to  the  door,  which  was  barred  across  with  two  bars,  and  the  managers  said  let  in 
one  colored  man  and  one  white.  They  would  let  in  one  colored  man  and  three  white, 
until  that  number  fifteen  was  exhausted.  No  more  colored  men  would  or  could 
come  in. 

Q.  What  time  did  they  commence  letting  the  colored  men  in  in  this  way  ? — A.  About 
9  o'clock. 

Q.  Had  any  persons  voted  before  this? — A.  Yes,  sir. 

Q.  About  how  many  ? — A.  About  thirty-five  or  forty  whites. 

Q.  Why  did  the  voting  proceed  so  slowly  ? — A.  I  can't  tell  why. 

Q.  Were  there  many  Republicans  around  the  poll  attempting  to  get  in  to  the  poll  t — 
A.  Yes,  sir ;  a  great  many. 

Q.  About  how  many  ? — A.  Suppose  about  2,000. 

Q.  From  the  action  of  the  men  on  the  steps  and  porch  within  the  court-room,  and 
the  officers  of  election,  could  these  men  have  deposited  their  ballots  had  they  seen  fit 
to  do  so  ? — A.  Could  not. 

Q.  Was  it  peaceable  and  quiet  all  day  at  the  poll,  and  did  you  see  any  evidence  of 
violence  ?— A.  It  was  not;  I  saw  pistols  drawn  by  Democrats  on  Republicans,  and  I 
saw  Democrats  picking  up  large  brickbats  and  saying,  "If  you  damn  negroes  attempt 
to  come  up  to  vote  you  will  catch  these"  (referring  to  the  brick  they  had  in  their 
hands). 

Q.  Do  you  know  of  any  ballots  being  cast  on  that  day  by  persons  who  were  minora, 
non-residents  of  the  county,  or  by  persons  who  had  already  voted  once? — A.  I  know 
of  no  minors;  I  do  know  of  non-residents  voting,  and  I  know  of  parties  voting  more 
than  once. 


SMALLS    VS.    TILLMAN.  441 

Q.  How  do  you  know  they  were  non-residents T — A.  I  know  them  well,  and  know- 
where  one  lives  in  Georgia.  I  know  of  a  great  many  who  voted  more  than  once ;  they 
came  up  and  voted,  and  would  sit  around  the  room  and  would  then  come  up  and 
vote  again. 

Q.  Did  any  vote  more  than  twice  ? — A.  Yes. 

Q.  More  than  three  times  ? — A.  Yes,  sir. 

Q.  More  than  four  times  ? — A.  Yes,  sir. 

Q.  More  than  five  times? — A.  Yes,  sir. 

Q.  More  than  six  times  T — A.  Yes,  sir. 

Q.  More  than  seven  times  ? — A.  Yes,  sir. 

Q.  More  than  eight  times? — A.  Not  more  than  eight  times. 

Q.  Did  these  persons  vote  under  their  own  names  each  time  ? — A.  No,  sir. 

Q.  Was  anything  said  by  them  or  the  managers  when  they  came  up  to  vote  after 
the  first  time  ? — A.  Not  by  them,  but  by  the  managers.  They  laughed  and  said  they 
were  tricks. 

Q.  Did  the  repeaters  say  anything  themselves? — A.  No,  sir;  they  would  simply 
come  up  and  vote  in  other  men's  names  and  step  aside. 

Q.  Did  you  know  any  of  these  men? — A.  Yes;  some  of  them. 

Mr.  O.  Sheppard,  a  witness  for  the  contestee,  a  private  citizen  who 
had  ordered  a  colored  elector  arrested,  as  he  himself  testifies  (498) — "  I 
told  Wm  to  put  him  iu  jail  on  account  of  his  threatening  manner  and 
bulldozing  style  " — further  testifies  on  page  500 : 

In  the  first  place,  I  had  no  right  to  issue  an  order ;  I  was  only  anxious,  as  a  public 
citizen,  to  see  that  peace  should  be  preserved;  and  besides,  we  wanted  nothing  but 
peace,  and  Mr.  Blackwell,  being  a  State  constable,  and  I  drawing  the  only  inference 
that  was  possibk*  under  the  circumstances,  that  he  and  his  crowd  came  here  for  a  row, 
I  took  that  method  of  putting  a  stop  to  it,  if  possible,  in  order  to  preserve  the  peace. 
In  my  judgment,  had  it  not  been  for  that,  his  conduct  would  have  precipitated  a  seri- 
ous riot,  in  which  numbers  of  lives  would  inevitably  have  been  lost.  These  colored 
men  who  came  to  me  and  asked  me  not  to  have  him  arrested  did  not  seem  to  be  actu- 
ated by  the  same  malice  that  he  was,  but  I  believe  that  they  saw  that  we  were  pre- 
pared for  them,  and  had  it  not  been  for  that  they  would  have  been  just  as  keen  as  he 
was.  This  is  my  opinion.  I  did  not  see  those  parties  do  any  acts  of  violence,  but  they 
were  in  the  same  crowd  with  him ;  he  seemed  to  be  a  leader  ;  he  was  in  front  of  the 
crowd,  and  had  an  outrageous,  an  awful  large  club,  and  seemed  to  be  actuated  by  the 
utmost  venom. 

D.  R.  Durisoe,  Democratic  county  chairman,  who  seems  to  have  been 
in  command  of  the  red-shirt  forces  of  Edgefield,  testifies  (pp.  528,  529:) 

Q.  Did  not  the  fact  of  the  Republicans  approaching  the  polls  yelling  and  waving: 
their  clubs  tend  to  intimidate  a  good  many  Democratic  voters  ? — A.  We  were  all  more 
or  less  apprehensive  of  trouble  and  danger,  and  forthwith  I  consulted  with  a  number 
of  gentlemen  as  to  the  propriety  of  sending  for  reinforcements,  thinking  that  by  in- 
creasing our  numbers  we  could  the  better  preserve  the  peace  and  keep  down  any  diflB- 
culty  between  the  parties.  I  then,  immediately  after  this  conference,  sent  messenger*. 
to  Landrum's  Store,  Trenton,  Johnston,  and  Cheatham's  Store,  for  detachments  from 
their  Democratic  clubs  to  come  to  our  prompt  assistance.  Before  sending  these  mes- 
sengers I  met  on  the  street,  near  the  court-house  steps,  and  after  the  Republicana 
marched  np  and  took  their  position,  Capt.  St.  Julian  Bland,  and  asked  him  to  call  hi*, 
company  together,  and  assemble  at  his  armory  forthwith,  as  I  was  fearful  we  were 
going  to  have  trouble.  He  said  he  would  do  so,  and  started  with  a  crowd  in  that 
direction. 

Q.  You  said  you  requested  Captain  Bland  to  take  his  company  up  in  the  Masonic 
Hall  (the  armory);  was  not  this  company  one  of  the  militia  companies  of  the  State, 
and  did  you  not  make  that  request  after  you  saw  that  a  riot  was  imminent,  and  was- 
it  not  done  solely  as  a  cautionary  measure,  that  is,  to  prevent  a  riot,  if  possible,  and 
if  the  riot  could  not  be  averted,  then  they  were  to  be  used  as  a  means  to  prevent  this- 
large  body  of  the  infuriated  negroes  from  committing  any  acts  of  vandalism? — A.  I 
know  that  St.  Julian  Bland  was  captain  of  the  Edgefield  Rifles,  and  that  the  company- 
was  legally  and  lawfully  commissioned  and  received  into  the  State  militia;  audi 
further  knew  that  it  was  his  duty,  when  called  upon,  to  aid  in  keeping  the  peace  and 
assist  iu  putting  down  and  quelling  riots  should  any  occur  ;  and  I  therefore  thought 
that  by  hjiving  him  and  his  company  iu  readiness  at  the  company's  armory,  to  be 
called  for  if  wanted,  that  said  company's  preseuce  and  influence  would  have  material 
eflecl  in  bringing  to  a  speedy  end  any  riotous  proceedings  that  might  be  inaugurated, 
and  which  looked  so  very  probable  at  the  time  I  requested  him  to  assemble  his  com- 
pany. 

Q.  Did  you  vote  at  the  last  election  ? — A.  I  did. 


442  DIGEST    OF    ELECTION   CASES. 

Q.  For  whom  did  you  vote? — A.  G.  D.  Tillman. 

Dr.  G.  W.  Wise,  witness  for  contestee  (p.  536) : 

Cross-examination  by  L.  Caix,  counsel  for  contestant : 

Q.  About  what  time  in  the  day  was  it  when  you  received  information  that  the  Dem- 
ocrats at  the  court-house  were  apprehensive  of  danger  ? — A.  About  9  o'clock ;  I  think 
we  got  word  twice. 

Q.  About  how  many  meu  came  with  you  in  that  company  ? — A.  I  think  about  fif- 
teen started  from  Trenton,  and  some  few  fell  iu  with  us  along  theroad,  and  there  was 
not  exceeding  twenty-five  when  we  arrived  at  the  Edgefield  precinct.  This  was  not 
3.n  organized  company.  The  most  of  our  men  had  gone  to  Johnston.  We  got  a  dispatch 
that  there  was  some  trouble  down  there. 

Q.  Were  not  most  of  these  men  who  came  with  you  armed  with  guns  and  pistols, 
■dressed  in  red  shirts,  and  when  they  were  coming  up  Main  street  were  they  not  yell- 
ing, flourishing  their  pistols,  and  making  a  display  which  was  calculated  to  terrorize 
and  intimidate  Republican  voters  ? — A.  There  was  not  a  gun  in  the  crowd.  If  there 
■was  any  pistols  I  did  not  see  them  ;  likely  they  had  pistols  on.  They  certainly  ought 
•to  have  them,  if  they  had  not.  /  had  mine  on.  I  heard  that  there  was  a  riot  here,  and 
came  prepared  to  quell  it,  if  possible.  There  were  very  few  red  shirts.  Don't  think 
»  single  man  who  left  Trenton  with  me  had  on  a  red  shirt ;  some  few  fell  iu,  I  think, 
had  on  red  shirts.  One  man  wanted  to  bring  a  gun,  and  I  advised  him  not  t»  do  so, 
and  he  did  not.  No  flourishing  of  pistols  that  I  saw.  I  heard  some  hallooing  or  yell- 
ing. I  don't  know  how  easy  Republican  voters  were  intimidated.  I  don't  think  a 
little  crowd  like  that  would  have  intimidated  me  much. 

Q.  How  many  precincts  did  these  twenty-five  men  who  accompanied  you  visit  that 
•day  besides  Edgefield,  Trenton,  and  Landrum's  Store? — A.  None  that  I  know  of,  and 
not  all  of  the  same  men  who  came  here  went  to  Landrum's  Store,  but  others,  who  did 
not  come  to  Edgefield,  went  to  Landrum's. 

Lewis  Jones,  a  witness  for  the  contestee  (p.  517),  who  was  a  State  con- 
stable, and  when,  as  the  testimony  shows,  there  were  between  2,000  and 
5,500  Republican  voters  and  less  than  700  Democratic,  testified  as  follows : 

I  approached  the  crowd,  asked  them  what  they  wanted.  They  replied  that  they 
"wanted  to  vote.  I  told  them  they  would  be  allowed  to  vote  three  at  the  time ;  that 
they  could  not  approach  the  polls  in  a  mass  that  way  ;  that  if  they  would  vote  alter- 
nately, three  at  the  time,  three  colored  and  three  white,  they  would  be  allowed  to 
vote;  I  would  go  with  them  myself  and  see  that  they  were  allowed  to  vote. 

This  witness  testifies,  on  same  page,  "  I  got  the  appointment  of  State 
constable  to  act  on  that  day  for  the  purpose  of  keeping  the  peace  and  good 
4)rder,^ 

And  a  cross-examination  (j).  521) : 

Q.  You  offered  to  accompany  them  to  the  polls  and  see  that  they  were  allowed  to 
vote;  did  you  go  with  any  of  them? — A.  I  did;  I  went  to  the  door  where  there  was 
•a  guard  whose  duty  it  was  to  see  that  3  be  allowed  to  come  in  at  the  time ;  I  went 
there  with  3  squads,  they  became  impatient,  and  said  that  it  was  too  slow  voting  that 
way. 

The  testimony  of  Jones,  Wise,  and  of  D.  R.  Durisoe  shows  that 
bodies  of  armed  Democrats  in  uniform  were  riding  to  and  fro  between 
the  polls  on  the  day  of  election.     On  pp.  518  and  519  he  testifies  : 

Q.  Were  you  in  the  village  on  the  evening  previous  to  the  election  ? — A.  I  think  I 
was,  but  am  not  certain. 

Q.  Do  you  remember  seeing  white  men  mounted,  dressed  in  red  shirts,  and  riding 
into  town  in  companies  that  evening  ? — A.  I  do  remember  seeing  squads  of  men  riding 
into  town  and  out  again  that  evening;  some  few  had  on  red  shirts. 

Q.  Were  not  some  of  these  men  armed,  and  was  not  the  demonstration  made  by 
them  in  the  way  of  yelling  calculated  to  intimidate  Republican  voters? — A.  As  to  the 
arms,  I  can't  say  that  I  saw  any;  but  as  to  the  yelliug,  there  was  some  holloaing; 
■can't  say  that  the  demonstration  was  calculated  to  intimidate  any  Republican  voter ; 
I  think  they  have  got  used  to  that  sort  of  a  thing. 

Q.  Is  it  not  a  fact  that  a  great  many  white  men  rode  into  town  that  day  in  com- 
panies armed  with  guns  and  pistols? — A.  There  were  squads  of  white  men  who  would 
pass  through  town  and  stop  a  little ;  I  think  I  saw  some  pistols  on  some  of  them ;  saw 
no  guns. 


SMALLS    VS.    TILLMAN.  443 

Q.  Do  you  not  remember  seeing  Democrats  at  the  village  precinct  that  day  who 
came  from  the  Dark  Corner,  a  distance  of  25  miles;  from  the  Saluda  section,  a  distance 
of  25  miles;  from  Ridge  Springs,  a  distance  of  17  miles,  o  rfrom  Shaw's  Mills,  a  dis- 
tance of  IS  miles? — A.  I  think  there  were  men  here  from  most  of  those  places,  but 
don't  remember  who;  I  don't  remember  seeing  anybody  here  from  Shaw's  Mills. 

Q.  Do  you  remember  seeing  on  the  day  of  election  white  men  dressed  in  red  shirts  on 
the  street,  armed  with  guus  or  pistols,  or  in  the  Masonic  Hall,  or  in  any  of  the  doors  or 
windows  fronting  on  the  public  square  f — A.  There  was  some  few  men  on  the  streets 
on  that  day  dressed  in  red  shirts,  and  some  of  theju  may  have  had  pistols;  I  don't  re- 
member about  that ;  don't  think  any  of  them  had  guns.  As  that  large  crowd  of  col- 
ored men  were  approaching  the  public  square,  I  myself  ordered  a  renmaut  of  the  rifle 
company  to  rendezvous  in  Masonic  Hall,  and  to  take  position  in  the  windows  fronting 
the  public  square ;  they  had  rifles.  There  were  other  men  armed  with  guns,  but  few 
in  number,  who  took  position  in  the  gallery  occupied  by  Mr.  Miners ;  this  was  done 
for  the  purpose  of  suppressing  a  riot,  for  it  looked  very  much  like  a  riot ;  it  was  a  pre- 
cautionary measure,  I  regarded  it,  and  I  think  it  had  that  effect. 

Q.  Did  you  order  out  the  men  that  took  possession  of  Miner's  gallery! — A.  I  did 
not;  I  think  they  went  there  on  their  own  accord. 

Q.  Can  you  state  where  these  men  got  their  guns  from  that  took  position  la  the  gal- 
lery?— A.  No,  sir;  I  don't  know. 

Q.  Among  those  who  asseuAled  themselves  in  Masonic  Hall  under  your  orders, 
were  there  not  persons  other  than  members  of  the  rifle  company  ? — ^A.  I  don't  know; 
I  don't  know  how  many  nor  who  they  were  up  there. 

Charles  Holmes  (p.  694)  testifies : 

Q.  M.  O.  Sheppard  has  testified  that  the  election  at  the  court-house  precinct  was 
conducted  fairly,  and  all  could  have  voted  who  desired  to  do  so,  and  that  he  carried 
you  to  polls  himself:  is  that  true  or  not  ? — A.  It  is  not  true.  I  was  carried  there  by 
Mr.  Lewis  Jones,  sr.,  and  I  could  not  have  voted  had  it  not  been  for  him  and  others, 
thought  I  was  going  to  vote  a  Democratic  ticket.    How  come  them  to  let  me  in 

(Objected  to  as  not  relevant — the  latter  part  of  answer.) 

Q.  Did  you  not  see  the  entrance  to  the  polling  precinct  obstructed  during  the  entire 
part  of  the  day  that  you  remained  at  the  polls,  by  Democrats  uniformed  in  red  shirts, 
pistols  buckled  around  them,  and,  at  times,  with  pistols  in  their  hands;  and  also,  did 
you  not  see  them  have  brickbats,  and  some  with  clubs  or  pieces  of  boards  in  their 
hands? 

(Objected  to  as  cumulative  evidence,  and  as  new  matter,  and  not  in  reply.) 

A.  I  saw  pistols  in  their  hands ;  I  saw  them  with  bricklaats,  sticks  of  some  kind — 
can't  say  what  they  were.  The  polling  place  was  crowded  with  Democrats  all  day 
long. 

Q.  Do  you  know  why  the  Republicans  came  to  the  polls  in  bodies? — A.  I  do.  Be- 
cause the  recent  election  before,  where  there  was  one  or  two  together  they  were  run 
over  and  knocked  their  hats  off;  and  I  heard  them  say  when  there  was  a  big  crowd 
together  may  be  they  would  not  be  attacked  so. 

(A  part  of  the  answer  objected  to  as  not  relevant.) 

Q.  Can  you  explain  why  it  was  that  a  number  of  them  had  sticks  in  their  hands? — 
A.  I  heard  them  say  the  Democrats  was  all  armed  and  they  were  not  able  to  buy 
them  and  had  sticks  to  protect  themselves  to  keep  from  being  run  over. 

(Objected  teas  hearsay  evidence.) 

Q.  You  were  president  of  a  Garfield  club,  were  you  not  ? — A.  I  was. 

Wiley  Weaver  (p.  690)  testifies : 

A.  The  object  of  our  crowd  was  that  the  Democratic  party  had  promised  to  be  at 
the  cross-roads  to  turn  us  back ;  we  thought  that  by  coming  in  bodies  that  it  would 
prohibit  them  from  interrupting  us;  we  taken  the  sticks,  for  instance,  if  they  should 
undertake  to  run  over  us  we  would  have  something  to  protect  ourselves,  and  it  was 
not  the  ol)ject  to  take  forcible  possession  of  the  polls. 

(The  latter  part  of  the  answer  objected  to  as  a  matter  of  opinion.) 

Q.  You  were  the  leader  of  the  crowd  that  came  along  with  you,  were  you  not? — A.. 
I  was. 

Q.  About  how  many  were  with  you  ? 

(Obj.icted  to  as  not  in  reply.) 

A.  About  150. 

Q.  Of  this  number  about  how  many  voted? — A.  Not  one. 

Q.  Then  the  statement  made  by  some  Democrats  that  every  one  coald  have  voted 
who  desired  to  do  so  is  not  true,  is  it  ? — A.  It  is  not. 

Q.  State  why  you,  and  the  men  accompanying  you,  did  not  vote. — A.  They  didn't 
allow  us  any  chance  to  vote. 

Q.  Why  did  you  and  your  crowd  leave  the  polling  precinct  at  the  time  you  didf 

(Objected  to  as  not  being  in  reply. ) 


444  DIGEST    OF    ELECTION    CASES. 

A,  It  was  about  2  o'clock  wlien  we  left,  and  I  saw  there  was  no  chance  of  voting, 
and  I  taken  my  crowd  and  left. 

Q.  While  at  or  near  the  jjolling  precinct  did  you  see  any  acts  of  violence  on  the 
part  of  the  Democrats  ? 

(Objected  to  as  new  matter.) 

A.  I  saw  the  Democrats  come  around  cursiiifj,  tempting  us  with  board  or  pieces  of 
plank  while  we  were  here  ;  I  mean  drawing  planks  on  ns,  and  telling  us  what  they 
■would  do,  and  that  they  would  knock  ns  down  with  these  boards  if  we  came  up  there. 

(Answer  objected  to  as  new  matter.) 

Q.  Some  Democrats  have  testified  that  no  violence  or  threats  were  used  by  the 
Democrats  at  the  court-house  box  ;  then,  from  your  knowledge,  you  know  this  to  be 
untrue,  do  you  not? — A.  I  do. 

Q.  Did  the  colored  men  who  came  with  you  have  the  slightest  idea  or  intention  of 
raising  a  disturbance  with  the  Democrats  at  the  polls  on  the  day  of  election  ? — A. 
They  did  not. 

(Objected  to  as  matter  of  opinion.) 

R.  T.  Anclersou,  another  witness  for  the  contestee,  testified  as  follows 
on  the  cross-examination,  on  page  504 : 

Q.  Will  you  explain  how  it  was  possible  to  preserve  Uie  peace  by  the  assembling  of 
these  armed  men  up  stairs  in  the  Masonic  Hall  ? — A.  As  was  explained  to  me  by  some 
of  those  parties  that  was  in  the  hall,  they  knew  full  well  the  Republicans  could  not  stand 
the  sight  of  fire-arms,  and  that  the  Eepublicans  had  such  an  overwhelming  majority,  and 
but/ejp  tf7*ife,  they  assembled  there,  thinking  that  the  sight  of  those  guns  would  deter 
them  from  making  an  attack,  or  getting  up  a  riot.  If  such  thing  should  happen, 
they  could  use  their  arms  effectually,  and  I  have  heard  from  several  Republicans  that  the 
eight  of  those  men  in  the  hall  were  the  only  reason  that  a  row  was  not  gotten  up  here 
that  day.  I  don't  know  their  names.  I  have  heard  from  at  least  twenty  Republicans, 
while  in  my  bar,  say,  if  it  had  not  been  for  them  guns  in  the  hall  we  would  have  takeu 
that  box  that  day. 

PLEASANT   LANE — EDGEFIELD. 

James  P.  Norris,  witness  for  contestee,  testifies  (p.  541)  on  cross- 
examination,  as  follows : 

Q.  There  was  no  attempt  on  the  part  of  the  Republicans  whom  jon  saw  passing 
the  precinct  of  which  you  were  a  manager  to  interfere  with  the  managers  or  the  vot- 
ing, was  thert^  ? — A.  None  at  my  box.  It  seemed  to  me  that  they  intended  to  congre- 
gate at  Meeting  street. 

Q.  Do  you  know  anything  about  what  transpired  at  Meeting  street,  except  what 
you  have  heard  from  other  parties  ? — A.  I  know  that  some  of  these  colored  men  told 
me  that  they  had  been  to  Meeting  street. 

Q.  Can  you  give  the  name  of  any  of  the  parties  who  gave  you  this  information  T — 
A.  I  can,  but  I  decline  to  do  so. 

Q.  You  stated  in  your  direct  examination  that  j  ou  heard  the  rumor  that  colored 
men  were  buying  up  all  the  arms  and  ammunition  they  could  get  some  days  previous 
to  the  election.  Can  you  give  the  name  of  a  single  individual  who  made  these  pur- 
chases, or  the  name  of  a  single  individual  who  sold  arms  or  ammunition  to  Republican 
voters  just  previous  to  the  election? — A.  It  only  came  to  me  as  a  rumor. 

Q.  You  have  stated  that  so  far  as  your  observation  extended  it  had  been  the  custom 
of  the  Republicans,  during  the  Republican  adtninistration,  to  mass  their  voters  at  a 
few  precincts  and  take  and  hold  possession  of  the  same  during  the  day  ;  will  yon 
please  state  the  election  and  precinct  where  white  Democrats  could  not  or  did  not  vote, 
if  they  so  desired,  during  the  Republican  administration  ? — A.  I  will  state  that  in 
1872,  at  Pleasant  Lane,  it  was  difficult  for  a  Democrat  to  vote  without  wedging  his 
way  through  a  crowd  of  colored  voters,  and  rendering  himself  liable  to  insult,  and 
saw  a  white  man  get  himself  into  a  difficulty  with  a  colored  voter  on  that  account. 

Q.  Will  you  please  state  whether  the  man  you  refer  to  or  any  other  white  man  had 
to  leave  there  that  day  without  voting  if  he  so  desired  ? — A.  No  ;  he  did  not. 

Q.  Was  not  one  of  the  managers  at  the  election  you  refer  to  a  Democrat  ? — A.  I 
don't  recollect. 

Q.  About  how  many  Republicans  were  there  that  day  ?— A.  Probably  _^//r/  during  the 
day. 

Q.  Was  there  only  one  Republican,  vote  polled  there  that  day  ? — A.  Only  one. 

Q.  You  staled  that  two  or  three  colored  men  voted  the  Democratic  ticket  that  day  ; 
can  you  give  the  names  of  these  parties  ? — A.  I  can,  but  decline  to  do  so. 


SMALLS    VS.    TILLMAN.  445 

MOUNT  WILLING — EDGEFIELD. 

George  Valentine  testifies  as  follows  (p.  417): 

Q.  Where  was  the  poll  held  f — A.  In  a  small  office  on  the  ground  floor. 

Q.  Where  was  the  box  placed?— A.  On  the  table,  about  the  middle  of  the  room. 

Q.  How  lartje  a  room  ? — A.  About  twelve  feet  long,  eight  or  nine  feet  wide. 

Q.  Did  the  managers  tell  how  long  the  polls  had  been  open,  or  how  many  people 
had  voted  ? — A.  No,  sir. 

Q.  Did  you  keep  a  poll- list  ? — A.  No,  sir. 

Q.  Were  the  voters  allowed  to  come  into  the  poll  and  pass  out  freely  ? — A.  No,  sir. 

Q.  How  was  the  eutrauce  to  the  room  arranged  ? — A.  One  door. 

Q.  Was  that  door  free  f — A.  The  red  shirts  were  standing  around,  with  clubs  and 
pistols,  keeping  the  crowd  back,  and  letting  them  in  six  at  a  time. 

Q.  Was  any  discrimination  made  between  the  voters  in  admitting  them? — A.  Re- 
publicans were  kept  back  and  the  Democrats  admitted. 

Q.  Were  any  Democrats  kept  back? — A.  Every  now  and  then,  if  a  crowd  of  Demo- 
crats tried  to  get  in,  and  if  the  house  was  full,  they  would  keep  them  back  (p.  80). 

Q.  Were  there  many  persons  inside  the  house  during  the  day  ? — A.  Yes,  sir. 

Q.  To  what  political  party  did  these  persons  belong  ? — A.  To  the  Democratic  party. 

Q.  Were  any  Republicans  there  ? — A.  None  but  myself,  except  when  they  came  in  to 
vote, 

Q.  Did  any  attempt  to  remain  after  voting  ? — A.  No,  sir. 

Q.  Were  the  managers  Republicans  or  Democrats  ? — A.  Democrats. 

Q.  Did  you  remain  ail  day  ? — A.  No,  sir. 

Q.  Why  not  ? — A.  A  row  took  place,  and  I  got  out. 

Q.  What  time  was  this  ?— A.  About  2  or  3  o'clock. 

Q.  What  caused  the  row  f — A.  A  crowd  of  Democrats  came  up  ;  commenced  beating 
the  colored  people  with  clubs  and  sticks,  and  one  pistol  was  fired  ;  after  that  a  great 
deal  of  shooting  ;  then  the  colored  people  ran  home. 

Q.  Did  all  the  colored  people  run  away  ? — A.  There  was  about  a  dozen  staid  around 
there  till  sundown. 

Q.  How  many  went  away  at  the  time  you  did  ? — A.  About  one  hundred  and  eighty 
or  ninety. 

Q.  Why  did  you  not  remain  T — ^A.  Because  I  was  afraid  th§y  were  going  to  kill  me. 

-  Q.  Did  you  go  away  before  or  after  the  firing  ? — A.  I  went  at  the  time  of  the  firing. 

David  Graham  (page  438)  testifies  as  follows : 

Q.  Did  you  vote  ? — A.  No,  sir. 

Q.  Why  not  ? — A.  The  poll — when  I  got  there  I  staid  there  till  about  2  o'clock. 
About  that  time  came  up  a  crowd  of  Democrats  and  told  as  to  leave,  and  we  got  away, 
and  I  went  home. 

Q.  Were  these  Democrats  mounted  on  horses  ? — A.  They  were. 

Q.  (How  were  they  dressed  ? — A.  Some  had  on  citizens'  clothes,  some  red  shirts. 

Q.  What  did  they  say  to  you  ? — A.  They  said,  "  You  damn  niggers  get  away  from 
here." 

Q.  You  say  that  the  firing  commenced  ? — A.  Yes ;  about  a  minute  after  this  was 
said. 

Q.  Were  many  shots  fired  ? — A.  Grood  many. 

Q.  Did  any  others  leave  who  had  not  voted  ? — A.  Yes  ;  they  all  left,  Republicans. 

Q.  Did  anybody  remain  at  the  poll  ? — A  When  I  left  all  the  colored  had  gone,  ex- 
cept two  or  three,  and  a  good  many  Democrats. 

Q.  How  many  Republicans  left  before  you  did  ? — A.  About  seventy-five. 

Q.  Had  all  of  these  voted  ? — A.  No,  sir. 

Cross-examined  by  Mr.  Wardlaw  : 

Q.  You  say  a  good  many  Republicans  left ;  had  not  some  of  them  voted  ? — A.  Yes, 
«ir. 

Q.  Do  you  mean  to  say  that  75  left  who  had  not  voted, or  75  not  voted? — A.  I 
think  25  had  voted  ;  50  had  not. 

Q.  Did  you  go  back  to  the  polls  after  you  left  ? — A.  No,  sir. 

Q.  Did  you  attempt  to  vote  ? — A.  Yes,  sir  ;  I  did  a  time  or  two,  but  did  not  vote; 
they  were  crowded  so  I  could  not  get  in. 

MEETING  STREET — EDGEFIELD. 

W.  T.  Tillman  testifies  (p.  430)  as  follows : 

Q.  In  what  capacity  (were  you  there)  ? — A.  I  was  a  United  States  stJPERVisOR. 
^.  Were  you  present  when  the  poll  opened? — A.  I  was. 


446  DIGEST    OF   ELECTION   CASES. 

Q.  What  hour  did  it  open  T— A.  About  six  o'clock. 

Q.  Did  yon  see  the  box  opened  ?— A.  No,  sir. 

Q.  Did  you  act  as  supervisor  ? — A.  No,  sir. 

Q.  Why  not  ? — A.  I  was  prevented  by  the  Democratic  party,  who  sti  uck  me  with  » 
stick  and  asked  me  what  was  my  business  there.  I  told  them  I  was  a  United  States 
sup'ervisor.  One  said,  "What  does  the  United  States  know  about  you?"  He  say, 
"  God  damn  you  ;  you  will  smell  hell  here  before  night."  While  waiting  for  the  poll 
to  open  a  Democrat  snatched  my  hat  oif  and  hung  it  up.  I  put  it  on  ;  he  snatched  it 
off  again,  saying,  "  I  hung  it  up  ;  let  it  st.ay  or  the  first  thing  you  know  j'our  head 
will  be  hanging  there."  He  went  out  of  the  room  and  returned  with  a  club  appar- 
ently a  piece  of  fence  rail,  and  struck  me  twice  with  it,  and  I  retreated  under  the 
stairway,  and  he  then  struck  me  over  the  head.  The  clerk  of  the  board  askfed  me  to 
come  outside  with  him.  I  did  so,  and  while  there  the  poll  opened.  A  Democrat 
snatched  my  paper  away  from  me,  and  I  saw  them  no  more. 

(P.  207 :) 

Q.  Did  yon  know  of  any  Republicans  going  to  that  poll  who  did  not  vote  T — A. 
When  my  papers  were  taken  away  I  was  struck  three  times  over  the  head,  and  being 
advised  afterwards  by  friendly  Democrats  to  leave,  I  did  so  ;  I  returned  twice,  but 
receiving  abuse  from  this  same  man  I  left  the  poll  ;  about  one  mile  away  met  about 
one  hundred  and  seventy-five  or  one  hundred  and  eighty  Republicans  ;  I  told  thenj 
of  my  treatment ;  we  went  to  the  poll  and  found  it  surrounded  by  red-shirts,  and  the 
Republicans,  finding  that  the  Republican  supervisor  was  not  permitted  to  act,  would 
not  vote  and  left  the  poll. 

Q.  How  many  Democrats  were  around  the  poll  at  that  time! — A.  About  forty  or 
forty-five. 

Q.  About  how  many  Republicans  ? — A.  None. 

Q.  Any  Democrats  in  red  shirts  ? — A.  Yes. 

Q.  Many  of  them? — A.  All  except  three  or  four. 

Q.  Did  any  of  them  have  arms  ? — A.  Yes ;  about  twenty-five  or  thirty  had  pistols. 

GEORGE'S   CROSS-ROADS — EDGEFIELD. 

Westley  Long  testifies  (p.  424)  as  follows  : 

Q.  Do  you  know  any  man  who  went  there  to  vote  and  did  not  vote  t — A.  Yes,  sir. 

Q.  How  many  ? — A.  Some  fifteen  or  twenty. 

Q.  Why  did  they  not  vote  ? — A.  The  red-shirts  or  Democrats  crowded  the  polls  so 
that  they  could  not  vote. 

Q.  What  did  they  do? — A.  They  got  across  the  door  and  would  not  let  the  Repub- 
licans go  in. 

Q.  How  did  they  jirevent  them  ? — A.  They  crowded  the  door  with  their  horses  and 
would  not  let  the  Republicans  go  in. 

Q.  Was  there  any  violence  or  threats  by  any  one  that  day ;  if  so,  who  by  ? — A. 
Democrats  threatened  to  strike  the  Republicans,  and  said  they  should  not  stay. 

Q.  How  long  did  this  continue? — A.  I  don't  know.  I  did  not  stay  long  after  the 
threats  were  made. 

Q.  Did  the  Republicans  remain  at  the  polls? — A.  I  could  not  tell ;  I  left  soon  after 
the  threats  were  made. 

Q.  How  do  you  know  these  men  did  not  vote  ? — A.  I  went  there  with  them  and 
went  away  with  them. 

Q.  Wliy  did  they  leave  the  polls  ? — A.  It  looked  as  if  the  Democrats  were  going  to 
knocking  down  the  Republicans,  and  we  got  away  for  fear  it  might  come  upon  us. 

And  on  cross-examination  as  follows,  p.  425 : 

Q.  Did  you  hear  any  one  tell  the  Republican  supervisor  that  he  should  not  serve  ? 
— A.  Yes,  sir. 

Q.  Who  did  you  hear  tell  him  so? — A.  One  of  the  managers  told  him  so. 

Q.  Do  you  know  who  the  manager  was  ? — A.  I  don't  know  his  name. 

Q.  How  do  you  know  he  was  a  manager? — A.  He  was  there,  and  said  he  Avas  a 
manager. 

Q.  How  near  to  the  poll  when  you  heard  this  remark  of  the  manager  ? — A.  About 
twenty  yards. 

Q.  Did  he  say  it  in  a  loud  tone  ? — A.  He  said  it  in  an  ordinary  tone. 

Q.  Where  was  the  manager  ? — A.  About  twenty  yards  from  the  poll. 

Q.  What  was  he  doing  about  twenty  yards  from  the  polls  ? — A.  The  supervisor 
asked  him  to  step  out ;  he  wanted  to  talk  with  him. 


SMALLS    VS.    TILLMAN.  447 

Q.  Yon  say  the  Democrats  threatened  to  strike  Republicans  if  they  did  not  getaway 
from  there ;  wliat  threats  did  they  make  ? — A.  They  told  them  if  they  did  not  get  away 
from  there  they  would  frail  them  out. 

»  *  ■»  *•  *  #  it 

Q.  You  said  the  Democrats  had  a  good  many  pistols  ;  how  many  did  you  see  ? — A. 
Twenty-five  or  thirty,  I  reckon. 

Q.  Did  you  see  any  Republicans  with  pistols  or  clubs  ? — A.  I  saw  some  old  men  with 
walking  canes. 

Q.  You  never  saw  any  young  men  with  sticks  ? — A.  No,  sir. 

Q.  Do  you  know  who  the  men  were  that  you  saw  with  the  pistols? — A.  No,  sir,  I 
know  nothing  about  them. 

Q.  Did  those  men  live  in  your  section  ? — A.  I  do  not  know  ;  I  never  saw  them  be- 
fore. 

Q.  You  said  the  Republicans  could  not  vote  there  without  fear.  How  do  youknow 
that  ? — A.  Because  the  Democrats  were  presenting  pistols  at  us. 

Q.  You  said  the  Democrats  voted  without  fear.  How  do  you  know  that  ? — A.  There 
was  no  preventing  them  from  voting. 

Q.  You  said  the  Democrats  said  they  intended  to  carry  the  election  ;  did  you  hear 
that  ?— A.  Yes,  sir. 

Q.  Who  did  you  hear  say  so? — A.  I  prefer  not  to  give  names. 

CHEATHAM'S  STORE— EDGEFIELD. 

Brister  J.  Yeldell  testified  (p.  428)  as  follows : 

Q.  In  what  capacity  (were  you  there)  ? — A.  A  United  States  Supervisor. 

Q.  Were  you  present  when  the  polls  opened  ? — A.  1  was. 

Q.  Did  you  act  as  supervisor  that  day? — A.  No,  sir. 

Q.  Did  you  see  the  box  opened  by  the  managers  before  the  voting  commenced  ? — A. 
I  did  not. 

Q.  Why  not  ? — A.  Democrats  were  fighting  a  sham  battle  on  the  porch  and  I  wa» 
afraid  to  go  to  the  box. 

Q.  Did  you  go  into  the  poll  at  all  ? — A.  I  did  not. 

Q.  Being  supervisor,  why  did  you  not  ? — A.  One  of  the  managers  objected  to  my 
going  in. 

Q.  Did  you  stay  at  the  poll  all  day? — A.  I  did  not. 

Q.  Did  you  see  the  votes  counted  ? — A.  I  did  not. 

Q.  How  many  people  were  at  the  polls  when  it  opened? — A.  About  one  hundred 
Republicans  atid  about  twenty-five  or  thirty  Democrats. 

Q.  Did  the  polls  open  at  6  o'clock  ? — A.  Did  not. 

Q.  What  time  did  they  open  ? — A.  About  quarter  after  seven. 

Q.  How  long  after  sunrise  ? — A.  About  one  and  a  quarter  hours  after  sunrise. 

Q.  Was  there  any  one  present  wearing  uniforms  ? — A.  Yes,  sir. 

Q.  To  what  political  party  did  they  belong  ? — A.  To  the  Democratic  party. 

Q.  Did  any  of  these  men  have  any  arms  ? — A.  Yes,  sir. 

Q.  About  how  many  ? — A.  About  twenty. 

Q.  Who  were  the  parties  that  were  having  the  sham  fight  on  the  piazza ;  those 
with  red  shirts  on  or  without? — A.  Those  with  red  shirts  on  and  those  without. 

Q.  In  this  fight  were  any  arms  used  ;  if  so,  how,  and  what? — A.  They  had  pistols 
and  clubs  and  brandished  them  at  each  other,  striking  on  a  box  and  making  great 
noise. 

Q.  Why  did  you  leave  the  polls  ? — A.  A  Democrat  demanded  my  commission,  and  I 
handed  it  to  him  and  he  returned  it,  saying  he'd  be  damned  if  I  should  supervise  there 
that  day. 

Harry  Oliphant  testifies  (p.  451)  as  follows : 

Q.  Were  you  at  Cheatham's  Store  precinct  on  the  day  of  the  last  election  ? — A.  I  was* 

Q.  Did  you  vote? — A.  No,  sir. 

Q.  Why  not? — A.  I  was  runned  away  by  the  Democrats ;  they  fired  at  me. 

Q.  How  many  shots  were  fired  at  you  ? — A.  Three. 

Q.  Did  you  see  the  parties  who  fired  at  you? — A.  I  did  not. 

Q.  What  time  of  the  day  was  this  ?-^A.  Between  12  and  1  o'clock. 

Q.  What  ticket  did  you  intend  to  vote  ? — A.  Republican. 

Aud  on  cross-examination  as  follows : 

Q.  Just  fired  at  you  without  you  doing  anything  at  all? — A.  Yes,  sir. 
Q.  What  did  he  fire  at  you  with  ? — A.  Pistol,  as  far  as  I  know. 
Q.  Did  you  see  him  when  he  fired  at  you? — A.  Yes,  sir. 

Q.  Then  could  you  not  have  seen  what  he  fired  at  you  with? — A.  I  could  if  I  had 
my  mind  on  nothing  but  it. 


44S  DIGEST    OF    ELECTION    CASES. 

Q.  Is  it  not  usual  when  a  man  is  fired  at,  and  he  looking  at  the  person  who  fires,  to 
have  his  mind  on  it  ? 

f  Objected  to  as  irrelevant  by  contestant ;  seeking  opinions,  not  facts.) 

A.  I  having  my  mind  on  running  to  save  my  life  did  not  see  what  he  fired  at  me 
•with. 

Q.  Did  you  not  say  you  were  looking  at  him  when  he  fired  at  you  f — A.  I  did  not 
«ay  so. 

Q.  Then,  as  you  did  not  see  the  shots  fired  how  do  you  know  they  were  fired  atyoaf 
— A.  Because  there  was  but  that  one  man  after  me  in  an  open  old  field. 

John  Branson,  witness  for  contestee,  testifies  (p.  538)  as  follows: 

Q.  Did  you  see  any  acts  of  violence  committed  there  that  day  ? — A.  None  at  all. 

Q.  Harry  Oliphaut  testifies  to  having  been  fired  at  about  four  or  five  hundred 
from  the  polls ;  if  he  was  fired  at  at  all,  it  was  not  in  the  vicinity  of  the  polls! — A.  If 
he  was  fired  at  all,  it  was  some  three  or  four  hundred  yards  from  the  polls;  x>erhap8 
further.     I  heard  pistol  shots,  one  or  two,  and  heard  afterwards  that  they  were  fired 
at  Harry  Oliphant. 

Q.  Was  not  that  difficulty  a  personal  one,  and  had  nothing  to  do  with  the  election! 
— A.  I  don't  know. 

Q.  Was  it  not  a  general  rumor  that  the  colored  people  were  buying  up  all  the  arms 
and  ammunition  they  could  get  just  prior  to  the  election  ? — A.  I  never  heard  it. 

D.  J.  Mitchell,  p.  701 : 

Q.  Were  you  at  Cheatham's  Store  precinct  on  the  day  of  the  last  general  election  t — 
A.  I  was. 

Q.  Mr.  John  Brunson-  has  stated  that  the  election  was  conducted  fairly  there  ;  is 
that  corrector  not? — A.  I  can  only  say  that  the  Republicans  were  not  allowed  to  vot« 
whilst  I  was  there. 

Q.  Were  you  violently  treated  by  Democrats  there  that  day?  And,  if  so,  state  the 
manner  in  which  you  were  used. 

(Objected  to  as  new  matter  and  not  in  reply.) 

A.  i  was;  I  was  beat;  they  attempted  or  threatened  to  kill  me.  I  was  about  one 
liundred  yards,  more  or  less,  from  the  place  of  voting  ;  I  had  just  left  the  store  and 
had  gone  down  the  road ;  the  supervisor  and  aboutthree  or  four  hundred  Republicans 
who  had  just  left  the  store,  after  being  denied  the  right  to  vote.  The  supervisor  had 
commenced  taking  the  names,  and  I  told  him  that  I  was  going  home,  ami  he  said  to 
me  not  to  go  until  he  could  get  the  names  of  all  the  Republicans  who  would  come 
there  to  vote.  He  then  concluded  that  he  would  go  back  to  the  voting  place  again, 
and  so  he  did,  after  taking  all  the  names,  all  of  them  that  was  present.  He  then  asked 
me  to  go  with  him  back  again  and  stay  with  him  all  day,  in  order  he  could  take  the 
names  of  them  that  was  objected  to  voting.  I  did  not  go  with  him  there.  We  was 
not  far  from  the  store,  and  after  all  had  left  that  place  I  started  to  go  where  the  su- 
pervisor was,  and  before  I  got  to  the  store,  or  got  in  sight  of  the  store,  I  stopped  and 
looked  to  see  if  I  could  see  the  supervisor  or  any  Republicans  there.  I  did  not  see 
him  nor  a  colored  person  there.  I  started  away,  and  I  heard  some  one  saying,  "  Halt." 
I  did  not  stop  at  first,  and  they  still  repeated  the  same  word.  I  was  riding,  and  I  did 
not  stop  at  all,  but  I  walked  along  slowly,  and  they  overtook  me  and  told  me  that  I 
had  to  go  back  to  the  store.  I  told  them  I  did  not  have  any  business  down  there  now, 
and  I  was  going  home ;  they  were  white  Democrats ;  struck  me  with  a  club,  and  caught 
hold  of  the  horse's  bridle-rein,  and  told  me  that  I  had  to  go  back.  He  began  pulling  the 
xein,  and  I  got  off  the  horse.  At  this  time  there  was  another  Democrat  standing  behind 
me ;  I  turned  my  face  to  him,  and  he  had  his  pistol  drawn  on  me,  and  told  me  if  I  did  not 
go  back  to  the  poll  he  would  shoot  my  brains  out  and  leave  them  in  the  road.  I  then 
concluded,  rather  than  be  killed,  to  go  back ;  I  gets  to  the  store,  then  I  stops  at  the  steps 
and  refuse  to  go  any  further.  He  told  me  to  go  on,  and  I  would  not  move ;  they  then 
commenced  pushing  me,  and  caught  hold  of  me  by  the  arm,  and  carried  me  to  the 
window,  and  put  one  hand  on  my  nead  and  the  other  on  the  box,  and  he  said,  "  Here 

it  is,  God  d n  you,  now  vote."     I  told  him  I  could  not  vote  when  I  wanted  io,  and 

I  did  not  intend  to  vote  at  all.  One  of  the  Democrats  stnick  me  with  a  club,  and 
then  I  spoke  and  told  them  I  had  done  nothing  for  them  to  treat  me  in  that  manner, 
for  the  piazza  was  full  of  Democrats.  They  jumped  on  me,  and  commenced  pulling 
me  and  beating  me  about,  so  I  commenced  trying  to  get  loose;  they  commenced 
trilling  me  on  every  side,  and  I  seed  that  I  would  be  killed  ;  I  tried  to  get  to  the  door. 
In  the  mean  time  they  still  had  hold  of  me,  pulling  and  knocking  of  m< ,  trying  to  pull 
me  out  of  the  pia:;za  ;  they  said  to  kill  me.  One  of  the  supervisors  came  to  the  door 
and  opened  it,  and  as  soon  as  I  could  I  got  in  the  store,  whilst  they  all  was  knocking 
and  pulling  of  me.  They  tried  to  break  in  the  stoie  to  get  to  me,  but  was  objected 
by  the  locking  of  the  door  by  some  one  that  was  in  the  store.  They  were  still  yet 
'Cursing  and  damning,  and  saying  "Make  him  vote";  and  I  voted  a  Democratic 
ticket,  thinking  it  would  be  the  means  to  save  my  life  ;  and  after  I  had  voted  I  was 


SMALLS    VS    TILLMAN.  449 

Idt  out  the  store  by  a  white  Democrat  out  of  a  window  at  the  back  end,  which  way 
led  through  Mr.  Cheatham's  premises.  My  going  out  the  back  the  supervisor,  or 
rather  Den)ocratic  manager,  said  it  would  save  my  life,  and  one  of  them  went  a  little 
piece  with  me,  and  told  me  to  get  off  as  quick  as  I  could,  or  else  I  would  be  killed. 

(Objected  to  as  being  new  matter  which  the  contestant  knows  that  the  contestee 
■will  not  have  an  opportunity  of  replying  to,  and  not  in  reply.) 

TALBERT'S  store — EDGEFIELD. 

Lewis  W.  Collins  (p.  441)  testifies  as  follows: 

Q.  Were  you  at  Talbert's  Store  precinct  at  the  last  election ;  if  so,  in  what  capac- 
ity T — A.  As  supervisor. 

Q.  What  time  did  you  arrive  at  poll  T — A.  Seven  o'clock. 

Q.  Was  the  voting  then  going  on  f — A.  Yes,  sir. 

Q.  Why  did  you  not  get  there  when  the  poll  opened  T — A.  I  went  to  wrong  place. 

Q.  Did  you  go  inside  the  poll? — A.  I  did,  when  I  first  got  there. 

Q.  Did  you  remain  ? — A.  No,  sir. 

Q.  Why  not  ? — A.  Some  one  said  it  was  not  my  place;  I  then  went  out. 

Q.  Who  said  this? — A.  Democrats. 

Q.  Was  this  all  that  was  said  ? — A.  Yes  ;  all  that  was  said  to  me. 

Q.  Being  a  supervisor,  why  did  you  not  remain  anyhow  T — A.  He  said  this  was  his 
special  property  and  this  was  not  my  place;  get  out;  my  place  was  outside  the  door. 

Q.  Did  he  say  why  this  was  his  special  property? — A.  No;  he  did  not. 

Q.  It  being  a  public  place,  and  you  a  public  officer,  why  did  you  not  still  remain? — 
A.  My  reason  for  not  staying  was  because  I  thought  he  might  hurt  me  if  I  did  not  go. 

Q.  Did  you  keep  a  poll-list  ? — A.  No,  sir. 

Q.  Why  not? — A.  Because  around  the  box  was  so  crowded  could  not. 

Q.  Where  was  the  box  placed? — A.  About  two  feet  in  front  of  door. 

<^.  Were  there  any  persons  in  the  poll  other  than  the  managers? — A.  Yes,  sir, 

<^.  Who  were  they? — A.  Democrat  party. 

Q.  Were  there  any  Republicans  there  ? — A.  No,  sir. 

Q.  Did  all  the  voters  have  an  opportunity  to  cast  their  votes  freely  and  without 
molestation  from  any  one  ? — A.  No,  sir. 

(Objected  as  witness's  opinion.) 

Q.  In  what  way  were  rhey  hindered  or  obstructed  ? — A.  The  door  was  crowded  by 
Democrats  who  would  uot  let  the  Republicans  come  in ;  this  lasted  from  about  8 
o'clock  to  3. 

Q.  What  effect  did  this  have  on  the  Republican  voters? — A.  They  staid  till  about 
3  o'clock,  then  left. 

Q.  Did  any  Republicans  vote  at  all  ? — A.  Yes,  sir. 

Q.  About  how  many? — A.  About  twenty-five. 

Q.  How  many  went  away  without  voting? — A.  About  one  hundred  and  fifty. 

•Q.  Were  there  many  Republicans  at  the  polls  when  you  arrived? — A.  Yes,  sir. 

Q.  Did  any  of  those  go  without  voting  ? — A.  I  don't  know. 

Q.  About  how  many  Democrats  vot«d  up  to  3  o'clock  ? — A.  Forty  or  fifty. 

Q.  Why  did  the  voting  go  on  so  slowly? — A.  Because  those  who  were  there  kept 
the  box  crowded  and  there  were  no  more  tchites  present, 

RED  HILL — EDGEFIELD. 

Anderson  Carter  (p.  442)  testifies  as  follows : 

Q.  Were  you  at  Red  Hill  polling  precinct  on  the  day  of  last  election  ? — A.  I  was 
there  as  a  United  States  supervisor. 

Q.  What  time  did  you  get  there  ? — A.  Quarter  before  six  in  the  morning. 

Q.  What  time  did  the  polls  open? — ^A.  I  could  not  tell  what  time  they  opened.  I 
was  not  there. 

Q.  Was  the  polls  opened  at  six  o'clock  ? — A.  No,  sir. 

Q.  How  long  did  you  remain  there  ? — A.  Until  half-past  six. 

Q.  What  caused  you  to  go  away  ? — A.  Mr.  Ben.  Glanton,  one  of  the  managers,  told 
me  I  could  not  serve  without  my  having  my  oath  with  me.  I  then  showed  Mr.  Glan- 
ton my  commission.  A  party  of  white  men  came  up.  One  of  them  snatched  my  paper 
from  me  and  tore  one  up,  and  said,  "  God  damn,  if  you  don't  like  it  you  need  not  take 
it."    Others  said,   "  You  had  better  leave,  and  that  mighty  quick,  and  not  let  me  see 

?Ton  here  any  more  to-day  ;  if  you  do  I  will  put  a  light  hole  through  you."     I  then 
eft. 
Q.  What  did  you  do  then  ? — A.  I  went  home. 
Q.  Was  anything  else  done  to  you? — A.  That  is  all. 

H.  Mis.  35 29 


450  DIGEST    OF    ELECTION    CASES. 

Q.  Was  this  said  in  a  friendly  or  threatening  manner  ? — A.  Threatening  manner 
Q.  Why  did  you  not  still  remain  ? — A.  I  was  afraid  of  being  shot  to  death. 

RICHAEDSONVILLE — EDGEFIELD. 

Eichmond  Mobley  (p.  435)  testifies  as  follows : 

I  was  United  States  supervisor. 

Q.  Who  was  your  clerk  f — A.  Willie  Hazel. 

Q.  A  Republican  or  Democrat? — A.  I  suppose  a  Democrat. 

Q.  How  did  you  come  to  appoint  him  a  clerk  ? — A.  On  arriving  at  the  poll  I  asked 
for  somebody  to  act  as  clerk  for  me,  and  I  appointed  Willie  Hazel  before  the  poll 
opened.  Some  of  the  managers  said  that  was  not  the  place  for  supervisor,  sayings 
"  Eichmond,  you  had  better  go  out,"  and  I  went  out. 

Q.  After  going  outside,  did  you  have  a  position  so  that  you  could  see  the  box  and 
the  managers'  poll-list  at  all  times  during  the  day  ? — A.  Until  about  half-past  1  or  2,. 
I  did. 

Q.  At  this  time  what  happened  to  prevent  you  ? — A.  A  crowd  of  thirty-five  or  forty 
men  in  red  shirts  rode  up  to  the  poll  singing,  and  I  was  compelled  by  them  to  leave 
my  position.  They  remained  from  fifteen  to  twenty  minutes,  some  singing  and  some 
hallooing. 

Q.  Were  there  many  men  present  at  any  time  with  red  shirts  ? — A.  Yes,  sir ;  I  have 
seen  a  good  many  with  red  shirts. 

Q.  Did  you  see  any  persons  with  arms  ? — A.  I  saw  a  great  many  pistols,  but  no 
guns. 

Q.  Who  had  them  ? — A.  Democrats. 

Q.  Did  you  hear  any  threats  of  violence  or  see  any  violence  whatever  that  dayf — 
A.  None. 

Q.  Did  you  hear  any  fire-arms  discharged  on  that  day  ? — A.  None. 

Q.  Did  any  one  molest  you  that  day  f — A.  No,  sir ;  with  the  exception  of  a  man 
snatching  my  papers  out  of  my  pocket.  I  caught  hold  of  them,  and  he  said,  "God 
damn  you,  let  go  of  them."  I  then  let  loose.  He  kept  the  papers,  and  I  have  not 
seen  them  since. 

Q.  Did  you  see  the  votes  counted  ? — A.  J  did. 

Q.  Did  the  poll-list  and  ballots  tally  ? 

(Objected  to  on  the  ground  of  being  secondary,  evidence.) 

A.  No,  sir. 

Q.  What  difference  was  there  ? — A.  To  the  best  of  my  judgment,  there  were  seven 
more  names  on  the  poll-list  than  ballots  in  the  box. 

Q.  What  was  done  about  this  by  the  managers  ? — A.  I  don't  know. 

landrum's  store. 

Nathan  Sullivan  (p.  82)  testifies : 

Q.  Where  were  you  on  the  2d  day  of  November  last,  the  day  of  the  general  elec- 
tion ? — A.  At  Landrum's  store. 

Q.  In  what  capacity,  if  any  T — A.  A  United  States  supervisor  for  the  Republican 
party. 

Q,  Did  you  keep  a  poll-list? — A.  I  did  until  about  4  p.  m. 

Q.  Why  did  you  not  keep  it  longer  ? — A.  It  was  taken  from  me. 

Q.  By  whom  ? — A.  The  Democrats. 

Q.  Did  they  assign  any  reason  for  taking  your  i}oll-li8t  ? — A.  They  did  not. 

Q.  Were  any  colored  persons  driven  away  from  that  poll  by  violence  or  intimida- 
tion? 

(Question  objected  to  on  the  ground  that  it  is  a  leading  question.) 

A.  Not  until  in  the  afternoon,  after  they  had  voted  ;  some  of  the  Democrats  said  that 
they  had  no  business  there,  and  that  they  must  go  home.  They  went  and  did  not 
return, 

Q.  State  the  manner  in  which  the  voters  were  generally  sworn. — A.  They  sworn 
first  one  at  a  time,  and  then  two,  and  afterward  six  at  once. 

Q.  Were  all  the  voters  sworn  this  way,  without  regard  to  race  or  color  ? — A.  Yes. 

Q.  Did  you  see  any  strangers  vote  there ? — A.  Yes;  a  good  many. 

Q.  Do  you  know  where  they  came  from  ? — A.  No. 

Q.  Was  there  a  display  of' fire-arms  around  the  polls;  if  so,  by  whom? — A.  Yesj 
there  were  a  good  many  by  the  Democrats ;  a  few  by  the  Republicans. 

Q.  Was  there  any  firing  of  fire-arms  ? — A.  Yes ;  in  the  evening ;  there  was  a  great 
deal  hy  the  Democrats. 

Q.  Were  any  other  persons  allowed  in  the  poll  besides  the  two  supervisors,  the 
managers,  and  their  clerk  ? — A.  Yes. 


SMALLS    VS.    TILLMAN.  451 

Q.  To  what  party  did  these  others  belong  f — A.  To  the  Democratic  party. 
Q.  Were  yon  ]>reseut  at  the  counting  of  the  votes? — A.  I  was. 

Q.  How  did  the  ballots  in  the  box  compare  with  the  names  on  the  poll-list  ? — A. 
There  were  more  ballots  in  the  box  than  names  on  the  poll-list — about  76  more. 
Q.  What  was  done  with  this  excess? — A.  They  were  drawn  out. 

Cross-examination : 

Q.  You  said  your  duty  was  to  constme  the  election.  What  did  you  mean  by  the 
■word  construe  ? — A.  To  examine  closely  and  to  look  into  it  closely. 

Q.  How  many  were  there  in  the  party  who  took  your  poll-list  ? — A.  About  thirty- 
five. 

Q.  Did  they  all  take  it  ? — A.  One  of  them  took  it. 

Q.  Then  you  mean  to  say  that  a  Democrat  took  your  poll-list  and  not  Democrats  ? — 
A.  Yes;  a  Democrat  of  the  thirty-five. 

Q.  Is  there  any  badge  by  which  you  could  tell  a  Democrat  from  a  Republican? — 
A.  No ;  there  was  no  bad.  e.  I  told  by  the  way  they  voted  and  what  I  heard  them 
say. 

Q.  Do  you  know  the  man  who  took  your  poll-list  from  you  ? — A.  Yes. 

JOriNSTON'S. 

William  Trott,  witness  for  contestee  (p.  546),  testifies : 

Q.  You  saw  no  attempt  on  the  part  of  Republicans  to  use  the  clubs  which  you  have 
described,  or  any  demonstration  made  by  them  on  the  2d  day  of  November  last,  which 
caused  you  to  believe  they  intended  to  take  forcible  possession  of  the  polls  at  John- 
ston, did  you  ? — A.  I  did  ;  I  looked  upon  those  clubs  as  a  clear  demonstration,  for  thev: 
were  not  of  the  length  or  size  of  walking-sticks ;  /  saw  no  use  made  of  the  clubs. 

JOHNSTON'S,  EDGEFIELD  COUNTY. 

Willis  Gomillion  (p.  85)  testifies  : 

Q.  Were  you  at  any  particular  precinct ;  and,  if  so,  ifi  what  capacity  ? — A.  At  John- 
ston's precinct,  as  a  supervisor  o^  the  Republican  party. 

Q.  Did  you  discharge  your  duty  as  supervisor  ? — A.  Yes;  until  about  2.30  p.  m. 

Q.  Why  did  you  not  continue  to  act  ? — A.  I  was  seized  by  a  red-shirter,  who  said 
to  me,  "God  damn  you,  go  down  from  here."  There  being  no  protection  for  me  I 
went  down  and  did  not  return,  because  I  was  afraid  to  do  so. 

Q.  Afraid  of  what  ? — A.  I  was  afraid  that  the  Democrats  would  hurt  me.  After  I 
went  down  and  got  about  thirty  or  forty  yards  I  was  overtaken  by  the  same  gentle- 
man and  two  others  who  requested  me  to  stop,  and  told  me  to  come  back  and  go  with 
them.  I  asked  them  where ;  they  said,  "  On  our  side."  I  declined.  About  that  time 
I  was  surrounded  by  red-shirters ;  I  don't  know  how  many.  Some  of  them  said  tha* 
they  would  assure  me  that  I  would  not  be  hurt ;  **  Come  and  go  back."  I  then  dis- 
covered or  saw  Anthony  Miles  lying  dead  a  few  steps  off,  and  I  thought  that  I  had 
better  get  away.    ~ 

Q.  How  came  he  dead  ? — A.  He  was  shot  by  some  one,  just  above  his  eye,  with  at 
ball. 

Q.  Before  you  left  the  poll  what  seemed  to  be  the  disposition  of  the  Democrats,  or 
those  wearing  red  shirts,  for  peace  and  quiet  ? — A.  Right  around  the  poll  where  I 
could  see  was  peaceable,  but  outside  I  could  hear  the  reports  of  guns  and  pistols. 

Q.  What  was  the  consequence  of  all  this  disturbance  ? — A.  The  colored  people  all 
left. 

Q.  Did  they  vote  before  leaving  f — A.  Aboat  twenty-five  or  thirty  voted  ;  the  others 
did  not. 

Q.  Were  any  other  persons  in  the  room  besides  the  two  supervisors,  the  managers, 
and  their  clerk  ? — A.   Yes;  red-shirters, 

Q.  Do  you  know  the  politics  of  the  managers? — A.  They  are  said  to  be  Democrats. 

Q.  Were  you  in  position  to  see  the  voting  all  the  time  ? — A.  Yes. 

Q.  Was  more  than  one  sworn  at  a  time  ? — A.  Not  that  I  remember. 

Q.  To  what  political  party  did  these  men  wearing  red  shirts  belong  T — A.  To  the 
Democratic  party. 

Q.  Are  there  many  colored  Democrats  around  that  precinct  f — A.  I  think  there  were 
about  ten  or  fifteen. 

Q.  You  spoke  of  a  great  many  colored  men  leaving  the  poll  without  voting.  Were 
they  Democrats  or  Republicans  ? — A.  They  claimed  to  be  Republicans  in  my  presence. 

Q.  Had  these  men  remained  at  the  poll  and  voted,  what  ticket  would  they  have 
voted? 


452  DIGEST    OF    ELECTION    CASES. 

(Question  objected  to,  aa  it  is  only  a  matter  of  opinion,  and  leading.) 

A.  I  know  of  200  or  more  of  tliem  taking  the  Republican  ticket. 

45.  Who  was  the  Republican  candidate  for  Congress  ? — A.  Robert  Smalls. 

Butler  Hunt,  on  p.  86,  testifies  : 

«Q.  Did  you  vote  there  ? — A.  I  did  not. 

Q.  State  why. — A.  Because  I  was  rejected  from  the  box. 

Q.  On  what  grounds  ? — A.  Because  I  saw  no  way  to  get  to  the  box.  The  Democrats 
-was  standing  in  front  of  the  box;  one  said  to  me,  "  Stand  back,  you  colored  people, 
and  I  will  insure  you  that  you  shall  vote  here  to-day."  Then  I  gave  back,  and  the 
Democrats  began  to  ride  up  and  down  the  streets  on  horses,  waving  clubs,  pistols,  and 
«ome  swords;  then  I  got  back  on  the  other  side  of  another  house  and  remained  until 
about  12  m.  Then  I  went  to  the  depot  and  sat  down,  after  which  I  heard  discharges 
•of  guns  and  pistols.  All  the  colored  people,  with  myself,  ran  into  a  field  opposite  the 
poll.  When  the  firing  ceased  I  returned,  and  found  Anthony  Miles  lying  on  the  street 
^ead.     I  staid  about  five  minutes,  and  seeing  no  chance  to  vote,  and  hearing  the  Dem- 

•crats  say  that  all  these  d d  niggers  shall  not  vote  here  to-day,  I  thought  that  there 

>vas  no  use  for  me  to  stay  any  longer. 

Q.  Did  you  leave  alone  ? — A.  No ;  four  or  five  went  along  with  me. 

Q.  Had  they  voted  ?— A.  They  said  not. 

Q.  Who  was  the  candidate  on  the  Republican  ticket  for  Congress? — A.  Robert 
Smalls. 

Q.  Would  you  have  voted  for  Smalls  had  you  the  opportunity? — A.  I  would. 

John  Hammond,  p.  87,  testifies: 

Question.  Were  you  in  Edgefield  County  on  the  2d  day  of  November  last?  If  so, 
at  what  place  ? — A.  At  Johnston  precinct,  for  the  purpose  of  voting. 

Q.  Did  you  vote  ? — A,  No. 

Q.  Why  not? — A.  Because  I  could  not  get  into  the  room  where  the  box  was.  The 
door  was  crowded  by  Democrats  all  day.  and  I  could  not  get  in. 

Q.  Was  there  any  disturbance  of  any  kind  at  Johnston's? — A.  A  shooting  riot  took 
place  there  about  11  o'clock  a.  m. 

Q.  Who  started  and  done  this  shooting? — A.  The  white  men.  One  man  was  killed, 
(colored  man).  • 

Q.  Did  this  killing  have  any  tendency  to  drive  any  voters  from  the  polls? 

(This  question  objected  to  on  the  ground  of  its  being  leading.) 

A.  The  colored  people  ran  off  from  the  poll. 

Q.  Did  they  return  ? — ^A.  A  very  few  came  back  to  see  about  the  man  who  was 
«hot. 

Q.  Do  you  know  of  any  colored  men  leaving  the  poll  without  voting,  of  your  own 
knowledge? — A.  Don't  know  how  many  left,  but  I  think  that  there  were  as  many  as 
.700  or  800  who  left. 

Q.  Are  you  generally  acquainted  with  the  colored  people  in  this  section? — A.  Yes: 
I  was  horn  and  has  lived  in  this  section  all  my  life. 

Q.  What  are  their  politics? — A.  Republicans.  Now  and  then  you  will  find  one 
Democrat. 

Q.  Who  was  the  candidate  on  the  Republican  ticket  for  Congress? — A.  Eobert 
Stnalla. 

Q.  Had  you  not  been  prevented  would  you  have  voted  for  Smalls  ? — A.  Certainly 
I  would. 

Cross-examination : 

Q.  Do  you  know  every  one  of  the  seven  or  eight  hundred  men  who  left  there  with- 
out voting  that  day  ? — A.  No. 

Q.  About  how  many  did  you  know  ? — A.  I  cannot  tell  how  many,  but  I  knew  about 
three  or  four  hundred.  I  went  there  with  a  crowd  of  one  hundred  and  thirty  that  I 
know. 

Q.  How  do  you  know  that  the  others  were  Republicans  ? — A.  They  went  there  in 
Mepuhlican  clubs,  and  said  they  were  Republicans. 

Q.  Did  you  speak  to  all  of  these  men  ? — A.  No. 

Q.  Then  they  did  not  tell  you  they  were  Republicans? — A.  The  head  of  their  clubs 
told  me  so. 

Q.  Did  any  of  those  seven  or  eight  hundred  come  there  without  beinq  in  a  club  ? — A.  No, 

Q.  What  (lid  they  have  in  their  hands? — A.  They  had  walking  sticks;  some  of 
them  as  large  as  a  chair-round. 

Q.  Were  not  most  of  the  sticks  freshly  cut? — A.  I  suppose  they  cut  some  coming 
along  the  road  ;  we  generally  carry  sticks. 

Q.  Did  you  see  the  shooting  when  it  commenced? — A.  Yes. 

<^'  Did  you  see  every  shot  fired? — A.  No,  sir. 


SMALLS    VS.    TILLMAN.  453 

Q.  How  do  yon  know  that  the  Republicans  did  not  fire  any  T — A.  If  they  fired  any 
I  did  not  see  it. 

Q.  What  did  yon  do  when  the  firing  commenced  ? — A.  I  ran  in  between  two  stores. 

Q.  About  how  many  shots  were  fired  after  you  went  between  the  two  stores  T — A. 
Very  few  ;  not  as  much  as  ten. 

Q.  How  near  were  they  together  when  firing  commenced  T — A.  About  two  paces. 

Q.  You  say  you  left  about  1  p.  m.  Do  you  know  who  came  back  after  you  leftT — 
A.  No. 

Q.  Then  how  do  you  know  that  none  of  these  seven  or  eight  hundred  men  came 
back  ? — A.  They  say  that  they  did  not  go  back.  Some  of  them  never  stopped  running 
till  they  got  home. 

Q.  Have  yon  seen  all  of  them  since  then  T — A.  I  have  seen  the  greater  part  of  them» 

Q.  Did  you  take  the  trouble  to  ask  each  one  if  he  went  back  T — A.  If  I  did  not  tak& 
the  trouble  to  ask  them,  they  took  the  trouble  to  tell  me. 

REFERENCE   TO  TESTIMONY  FOE  AIKEN  COUNTY. 

Aiken  Court-House : 
James  Major,  p.  167. 
Samuel  Harvey,  p.  178. 
George  Short,  pp.  174,  175. 
George  Knight,  p.  180. 
Moses  Johnson,  p.  179. 
Jack  Robinson,  p.  182. 
Col.  E.  M.  Brayton,  p.  160. 
Mr.  Crossland,  p.  228. 
James  Major,  p.  167. 
James  T.  Wiugard,  p.  310. 

Silverton : 
J.  H.  Holland,  p.  144. 
J.  P.  Shells,  p.  155. 
D.  Bing,  p.  130. 
George  Washington,  ]).  133. 

Windsor : 
William  Trowell,  p.  136. 
General  Piper,  p.  140. 

Creed's  Store : 
Alexander  Williams,  p.  73. 
L.  B.  Coker,  p.  182. 

Fountain  Academy : 
N.  J.  Parker,  p.  79. 

Kneece's  Mill: 
Peter  Waggels,  p.  184. 
A.  Holmes,  p.  77. 

Jourdan's  Mill : 
W.  T.  Tally,  p.  72. 

AIKBN  COUNTY. 

The  uncontradicted  testimony  as  to  Aiken  Court-House  is  a  disgra^e^ 
not  alone  to  the  participants  therein,  but  to  the  civilization  of  the  age. 

Under  the  law  of  South  Carolina  an  elector  may  vote  at  any  precinct 
in  the  county,  and  many  voters  from  the  precincts  where  violence  and 
intimidation  were  greatest  went  to  the  town  in  the  hope  of  receiving  pro- 
tection in  the  exercise  of  their  rights  of  franchise.  This  was  particu- 
larly so  as  to  the  Ellenton  section,  which  was  the  scene  of  the  horrible 
bloodshed  in  1876,  and  where  a  Kepublican  meeting  was  broken  up  by 
violence  only  a  few  days  before  the  election.    But  their  hopes  of  peace 


454  DIGEST    OP    ELECTION    CASES. 

and  order  were  doomed  to  disappointment.  A  barricade  was  erected  in 
front  of  tbe  poll,  at  one  end  of  which  the  voters  were  to  enter,  and  at 
which  end  a  Democratic  guard  was  placed  to  keep  back  Republicans, 
whilst  the  Democrats  went  in  at  the  other  end  of  this  barricade  and 
voted  freely. 

All  the  managers  at  this  precinct  were  Democrats,  and,  according  to 
the  testimony  of  one  of  them,  there  was  "  a  constant  stream  of  white 
voters  for  over  three  hours."  This  was  from  the  time  the  polls  were 
opened.  About  the  end  of  that  time  (9  o'clock,  perhaps)  a  riot  was  in- 
augurated by  cutting  Republicans  in  the  crowd  at  the  entrance  to  the 
barricade,  and  by  throwing  Cayenne  pepper  into  the  eyes  of  colored 
voters.  At  this  poll,  a  piece  of  artillery  was  trained  upon  the  end  of 
the  barricade  at  which  the  Republican  voters  were  gathered,  awaiting 
an  opportunity  to  deposit  their  ballots. 

The  testimony  conflicts  as  to  whether  this  gun. was  loaded  or  not,  and 
also  as  to  the  circumstances  under  which  and  the  purpose  for  which  it 
was  there ;  nevertheless,  it  had  the  natural  effect  of  aidiug  in  the  in- 
timidation of  Republican  voters,  and  when  the  disturbance  was  raised 
by  the  cutting  with  knives  of  Republicans,  the  Palmetto  Rifles,  a  mili- 
tary organization  of  the  town,  were  drawn  up  in  line,  armed  with 
State  guns.  There  is  an  effort  on  the  part  of  some  of  the  contestee's 
witnesses  to  show  that  this  was  not  the  military  town  organization  as 
«uch,  but  rather  a  number  of  this  companj'^  acting  as  State  constables. 
This  fact  is  immaterial,  however,  for  the  conduct  of  this  companj'  shows 
plainly  that  instead  of  acting  as  peace  officers  they  were  a  part  of  the 
mob  engaged  in  the  illegal  work  of  intimidating  and  terrorizing  voters. 
Mr.  W.  C.  Jordan,  a  member  of  the  Aiken  bar,  and  James  T.  Wingard, 
a  town  marshal,  both  of  them  witnesses  for  the  coutestee,  distinctly  tes- 
tify that  it  was  the  military  organization.  By  these  means  the  bulk  of 
the  Republican  voters  were  kept  back,  and  when  the  polls  were  closed 
there  were  a  large  number  of  electors  still  waiting  to  vote,  and  al- 
though they  had  been  waiting  all  day  for  an  opportunity  of  voting,  were 
finally  denied  the  right.  It  is  estimated  by  the  testimony  of  several 
witnesses  that  there  were  300  Republicans  who  would  have  voted  for 
the  contestant,  but  who  were  prevented  from  casting  their  ballots  by 
the  Democrats  violently  crowding  the  polls. 

James  Major  (p.  167)  testifies  : 

Q.  Were  the  people  allowed  to  vote  freely  up  to  that  time  ? — A.  No,  air. 

Q.  Why  not? — A,  They  barred  them  from  coming  in  with  a  stick. 

Q.  Who  did  ? — A.  The  Democrats  did  ;  they  had  both  entrance  places  barred  with  a 
stick,  and  they  would  not  allow  them  in,  except  every  fifteen  or  twenty  minutes  they 
would  allow  them  to  come  in. 

Q.  Allow  how  many  in  ? — A.  Some  six. 

Q.  Were  the  white  men  and  colored  men  allowed  to  come  in  indiscriminately  ? — A. 
No,  sir. 

Q.  State  how  they  were  admitted. — A.  The  colored  people  all  was  packed  on  that 
end  where  they  said  they  had  to  come  in  ;  they  were  strong  from  the  entrance,  packed 
one  upon  another  up  to  the  poll,  and  the  Democrats  had  a  stick  across ;  at  this  end 
where  I  said  they  had  two  men  with  two  sticks  across  the  door,  and  they  let  them  in. 
They  said  no  one  could  come  in  there.  After  a  while  they  brought  up  a  white  man 
and  said  he  was  a  sick  man,  let  him  go  through  that  way.  I  had  a  good  many  sick 
men  too.  I  sent  off  and  brought  up  my  sick  men,  and  they  said,  "They  can't  go  in 
iiere."    Finally,  all  the  whites  crowded  the  poll  to  get  in  this  way. 

Q.  Which  end  are  you  speaking  of? — A.  The  whites  went  through  the  south  end. 

Q.  All  the  white  people? — A.  Pretty  much  all;  if  the  colored  men  went  up  those  in 
Jthe  crowd  were  cutting  them' up  with  knives;  they  got  the  people  so  excited  with 
their  cutting  them  up  with  knives.     I  went  in  there  when  the  crowd  was  thin. 

Q.  Did  the  most  of  the  white  voters  come  in  from  the  south  side  ? — A.  Yes,  sir. 

<J.  And  the  colored  people  were  kept  at  the  north  end? — A.  Yes,  sir. 

€^.  Would  the  managers  of  election  let  the  white  men  in  while  the  colored  people 


SMALLS    VS.    TILLMAN.  455 

•were  waiting  on  the  north  side  to  vote  ! — A.  Yes,  sir ;  they  staid  there  until  the  poll  closed, 
€it  6  o^ctock. 

Q.  Had  there  many  colored  men  voted  at  that  time? — A.  Not  a  great  deal;  there 
were  more  white  voters  than  colored,  because  they  commenced  to  blockade  them  from 
the  j  ump,  and  they  kept  them  barred  out  until  the  poll  closed.  At  6  o'clock  in  the 
evening  they  were  standing  there. 

Q.  You  don't  know  what  the  difficulty  was  when  the  cutting  took  place? — A.  They 
cut  them  because  they  went  in  there  to  vote. 

Q.  How  do  you  know  that  ? — A.  Because  I  was  afraid  I  would  get  cut  myself 

Q.  Because  j-ou  were  afraid  that  was  the  reason  Harvey  was  cut? — A.  No  ;  he  was 
cut  in  the  crowd  because  he  was  pressing  to  get  in. 

Q.  Was  anybody  cut  before  you  voted? — A.  I  voted  first  before  this  cutting  took 
place. 

Q.  Do  you  know  yourself  of  the  difficulty  between  these  men  when  the  cutting  took 
place  ? — A.  Yes,  sir  ;  I  know. 

Q.  State  what  was  the  difficulty  between  them. — A.  Because  they  were  standing  up 
there  to  get  in  to  vote,  and  they  cut  them  to  make  them  leave  that  place. 

Q.  This  you  know  to  be  the  truth  ? — A.  I  know  it  to  be  the  truth ;  that  was  all  the 
reason,  because  they  were  standing  perfectly  still  doing  nothing. 

Q.  Was  there  dui-iug  the  day  a  colored  man  let  in  at  this  exit  end  of  the  barricade 
who  was  too  sick  to  vote  ? — A.  Yes,  sir. 

Q.  About  how  many?— A.  I  could  not  say  exactly  how  many,  but  I  know  two  or 
three  slipped  in  that  end. 

Q.  But  was  there  not  some  who  were  sick  that  they  let  in  that  end  ? — A.  After  they 
cut  Uncle  Sam  so  bad  they  let  him  in. 

Samuel  Harvey,  70  years  of  age,  who  was  one  of  the  men  cat,  testi- 
fies (p.  178) : 

Q.  What  sort  of  a  man? — A.  A  white  man,  that  had  got  around  to  me  in  coming 
round;  I  was  standing  with  my  face  turned  from  the  poll. 

Q.  And  you  got  cut  where  ? — A.  In  the  right  breast. 

Q.  Did  you  have  that  coat  on  when  you  were  cut? — A.  Yes,  sir  [showing  cut  in  his 
coat  a  little  over  an  inch  long]. 

Q.  Has  the  wound  healed  up  ? — A.  Yes,  sir ;  the  doctor  put  a  plaster  on  it  and  it 
got  well. 

Q.  Can  you  show  us  the  wound  without  taking  your  coat  off? — A.  Here  it  is  [Show- 
ing wound  on  right  breast  near  the  collar  bone]. 

Q.  Were  you  creating  any  disturbance  at  the  time? — A.  I  never  said  anything  after 
they  cut  me. 

Q.  Was  the  colored  people  creating  any  disturbance? — A.  No,  sir;  they  were  stand- 
ing there  quiet. 

Q.  Had  there  been  auy  disturbance  around? — A.  Not  with  the  colored  people. 

The  pretext  that  voters  had  come  from  other  counties  was  shown 
merely  to  be  such — by  the  te^timouj'  of  one  of  the  managers — in  the 
case  of  three  men  only  who  had  come  from  other  counties  and  attempted 
to  vote  at  the  polls.  Aiken  County  is  composed  of  parts  of  Edgefield 
and  Barnwell  Counties,  and  the  testimony  shows  that  some  voters  came 
from  that  portion  of  the  county  which  had  formerly  been  Edgefield ;  but 
their  legal  right  to  vote  at  Aiken  Court-House  is  beyond  dispute.  But 
not  content  with  suppressing  Rei)ublican  vot<?s,  the  Democrats  stuffed 
the  box  with  30  fraudulent  Democratic  ballots.  In  a  former  contest  be- 
tween the  parties  to  the  present  one,  when  their  relations  were  reversed, 
much  comi)laint  was  made  by  the  Democrats  against  Government  troops 
being  used  at  some  of  the  polls  in  this  county  as  a  peace  posse.  Now, 
in  this  case  an  organized  volunteer  company,  armed  with  rifles,  was  a 
part  of  the  mob  and  encouraged  and  aided  in  the  unlawful  act  of  intim- 
idating and  obstructing  voters.  In  view  of  the  facts,  your  committee 
is  of  opinion  that  this  particular  box  should  be  thrown  out  of  the  count. 

Col.  E.  M.  Brayton,  United  States  internal  revenue  collector,  testifies 
<p.  160) : 

Q.  Which  end  did  they  go  in  at? — A.  The  end  designed  for  the  voters  to  go  in  was 
at  the  northern  end. 

Q.  And  the  exit  was  at  the  south  end? — A.  Yes,  sir;  at  the  north  end  was  gathered. 


456  DIGEST    OF    ELECTION    CASES. 

this  large  mass  of  colored  people  waiting  to  vote,  and  that  crowd  remained  and 
seemed  to  me  to  be  undiminished  while  I  was  at  the  poll. 

Q.  Did  many  vote  while  you  were  there? — A.  I  was  not  near  enough  to  the  poll  to 
see  who  did  and  who  did  not  vote ;  but  judging  from  those  who  came  out,  and  from 
the  size  of  the  crowd  continuing,  and  the  complaints  of  the  people  that  they  were 
unable  to  vote,  I  should  judge  that  very  few  voted  while  I  was  there. 

Q.  Did  all  the  voters  pass  in  at  the  north  end  1 — A.  Xo,  sir  ;  I  saw  several  passing  in 
at  theoiher  end,  and  it  seemed  to  be  the  general  understanding  that  whenever  xohite people  wanted 
to  vote  that  they  would  be  taken  in  that  end  intended  for  the  exit  and  allowed  to  vote.  While 
that  was  going  on  of  course  the  colored  people  would  be  blocked  up  in  the  passage- 
way and  their  voting  discontinued.  It  was  understeod  the  large  bulk  of  white  people 
had  voted  early  in  the  daj% 

Q.  What  questions  were  asked  of  you  ? — A.  I  was  asked  where  I  had  my  washing 
done,  where  my  family's  washing  was  done,  and  where  my  family  was  living.  There 
■were  not  very  many  questions  asked  of  me,  I  being  so  well  known  here ;  but  there 
was  considerable  time  taken  up  by  consultation  among  the  board  of  managers,  and 
the  arguments  addressed  to  them  by  the  challengers  who  were  present  there. 

Q.  From  the  general  conduct  of  the  managers  and  the  persons  around  the  poll,  did 
the  Eepublicans  have  the  same  opportunity  to  deposit  their  ballots  as  Democrats 
had  ? — A.  No,  sir ;  I  can  hardly  conceive  a  more  unfair  and  partisan  election  than  I 
witnessed  upon  that  occasion.  I  know,  from  the  manner  of  the  managers  and  the 
challengers,  and  of  those  who  stood  within  the  room  at  the  time  I  attempted  to  vote, 
that  there  was  a  hostility  and  objection  to  everything  existing  on  the  part  of  those 
who  seemed  in  charge  of  election  affairs.  During  the  time  that  I  attempted  to  vote 
there,  questions  were  propounded  or  suggestions  by  those  outside — sometimes  those 
inside  the  polling  place  who  did  not  appear  to  have  any  official  connection  with  the 
election ;  and  there  was  an  insolent,  bitter,  violent  tone  and  look  upon  the  part  of  all 
of  those  that  I  saw  about  the  ballot  box. 

Mr.  Crossland,  Democratic  manager,  called  by  contestee,  testifies  (at 
p.  228) : 

Q.  Did  you  not  see  a  great  many  negroes  here  that  day  that  reside  in  those  remote 
sections  of  the  county  f — A.  Yes,  sir ;  I  saw  some  from  various  remote  parts  of  the  count-y. 

Q.  Did  you  not  see  some  there  from  Edgejieldf — A.  I  heard  at  least  fAree  acknowledge 
at  the  poll  that  they  were  from  Edgefield  County  ;  strangers  to  me. 

James  Major  (p.  167)  testifies: 

Q.  Were  there  not  a  number  of  colored  people  who  live  in  other  parts  of  the  county 
who  voted  over  here? — A.  Oh,  yes,  sir;  they  could  not  vote  other  places  in  the  county^ 
and  they  came  here  because  they  thought  it  was  more  peaceable,  and  thej  found  it  a» 
rough  as  anywhere  else. 

Q.  You  say  there  were  300  that  did  not  vote  ? — A.  Over  that. 

Q.  Are  you  willing  to  testify  that  they  did  not  vote  during  the  day? — A.  I  will; 
that  a  great  many  that  were  standing  at  that  poll  when  it  closed  that  did  not  vote, 
and  I  will  swear  to  it. 

Q.  Could  not  a  number  of  these  men  have  voted  elsewhere  in  this  county  during 
the  day  that  were  here  that  night ? — A.  No,  sir;  they  did  not  have  time,  they  did 
not  have  no  horse  to  ride  about  from  the  time  they  came  here ;  they  staid  here  until 
after  the  poll  was  closed. 

George  Knight  (p.  180)  testifies : 

Q.  Why  did  you  not  vote  ? — A.  I  came  soon  in  the  morning,  and  it  was  so  crowded 
yre  could  not  get  in,  and  the  white  folks  raised  a  sort  of  disturbance,  and  in  the  even- 
ing when  I  went  to  vote  there  were  8(?me  persons  standing  at  the  window  and  they 
threw  some  Cayenne  pepper  in  my  eye. 

Cross-examination  by  W.  W.  Williams,  Esq.,  counsel  for  contestee  : 

Q.  About  what  time  of  day  was  this  pepper  thrown  in  your  eye  ? — A.  About  2 
o'clock. 

Q.  By  whom  ? — A.  I  don't  know  who  did  it ;  I  did  not  see  after  they  threw  the  pep- 
per in  ray  eye  ;  it  just  blinded  me  ;  I  had  to  get  lard  and  rub  it  in  my  eye  for  a  day 
or  so  before  I  could  get  it  out. 

Q.  Where  Avere  you  standing? — A,  We  were  trying  to  squeeze  to  get  in  to  vote. 

Q.  How  far  from  the  barricade  ? — A.  By  the  steps  opposite  the  door  going  up-stairs. 

Q.  No  other  stairs  but  that  at  the  end  of  the  barricade  ? — A.  No,  sir ;  some  one  said 
**look  out,"  lohen  the  pepper  struck  me  blind. 

The  following  testimony  of  Jack  Eobinson,  elicited  at  the  cross- 


SMALLS    VS.    TILLMAN.  457 

examination,  sums  up  the  results  of  that  which  preceded  it,  very  point- 
edly (p.  183) : 

Cross-examination  by  W.  W.  Williams,  Esq.,  counsel  for  contestee : 

Q.  Did  you  attempt  to  vote  when  you  got  there,  at  7  o'clock  in  the  morning  T — A> 
Yes,  sir  ;  I  tried. 

Q.  What  was  the  extent  of  your  efforts? — A.  From  five  minutes  to  seven,  and  I 
stood  there  until  1  o'clock  and  tried  to  get  in,  and  I  could  not. 

Q.  Stood  where  ? — A.  Walking  up  following  the  crowd ;  I  went  off  at  1  o'clock,  and 
had  been  gone  not  more  than  twenty-five  minutes  and  came  back. 

Q.  If  you  had  staid  where  you  were  in  the  morning,  and  had  not  gone  off,  would 
you  not  have  got  to  the  poll  ? — A.  At  6  o'clock  I  would  have  been  further  off  than  I 
was  when  I  got  there.  When  I  came  back  the  men  that  I  left  there  were  not  nigb 
there.     I  was  trying  to  get  in  ;  I  was  making  my  steps  as  near  to  the  poll  as  1  could, 

Q.  Were  you  in  that  line  continuously  from  7  to  1  ? — A.  Yes,  sir ;  the  reason  I  cam& 
out  was  I  was  kind  of  sick. 

Q.  You  never  left  it  during  the  morning  T — A.  No,  sir ;  I  stood  right  there. 

Q.  When  you  entered  the  line  yon  stood  there  until  the  poll  closed  ? — A.  Yes,  sir  j 
until  the  poll  closed.  When  I  stepped  out  from  the  poll  it  was  when  the  pepper  was- 
thrown ;  they  threw  it  before  I  got  that  far. 

Moses  Johnson  on  cross-examination  (p.  179)  testifies : 

Q.  If  you  had  taken  your  position  in  the  line  at  7  o'clock  in  the  morning,  would  it 
not  have  come  your  turn  before  six  in  the  evening  ? — A.  I  stood  in  the  line ;  I  was  noi 
in  this  press,  because  I  could  not  get  to  the  poll.  I  tried  to  get  in  where  the  whit& 
people  went  to  vote,  and  it  was  crowded  with  white  people,  and  I  asked  Mr.  Hender- 
son if  I  could  get  in  to  vote  there.  He  said,  "  You  cannot  get  here  now,  but  we  will 
try  to  make  a  chance  for  you  after  a  while."  After  a  while  I  came  back  and  spoke  to 
him  again,  and  he  said,  "You  cannot  get  a  chance ;  you  will  have  to  come  back  after 
a  while,"  and  I  kept  going  until  I  could  not  vote  at  all,  and  then  they  commenced  to 
throw  pepper  in  the  men's  eyes. 

George  Thorn  (pp.  174  and  175)  testifies  as  follows : 

Angus  Brown,  who  was  clerk  of  court,  ran  into  the  crowd  with  a  double-barrel 
gun ;  upon  that  Elias  Goodin  and  Mr.  Harlin's  sou  Span  ran  in  the  crowd  with  a 
navy  pistol,  and  said,  "  You  damn  sons  of  bitches ! " 

Q.  Who  were  they  speaking  to ;  the  colored  voters  ? — A.  Yes,  sir ;  they  then  fell  out- 
again.  /  saw  Lou  Cutner  go  and  move  the  cannon  more  in  a  position  upon  us.  I  looked 
upon  him  and  saw  when  he  done  it.  The  whites  were  crowding  down  on  the  colored 
with  guns  and  pistols  in  their  hands.  Mr.  Hanlin  said,  "I  want  to  talk  wit^  them,"' 
and  he  went  then  in  the  alley-way  of  Loops  &  Ludiken,  and  said,  "We  want  peaco 
and  quiet ; "  the  remark  was  made  by  us  that  we  came  here  for  peace,  and  we  wanted 
to  rote  and  go  home;  but  they  would  not  let  them  vote;  instead  the  poll  was  crowded 
all  day  by  white  men  in  order  to  keep  the  colored  men  out.  I  stood  a  while  in  the  moruing^ 
at  the  south  end,  and  looked  and  made  my  remarks  to  them  to  put  those  polls  back 
the  same  place  where  they  were;  that  they  had  raised  the  riot  before,  and  it  must  bo 
your  intention  to  do  something  wrong  again ;  and  Mr.  Kline  said  "  You  better  leave  here."" 
I  said,  "  I  am  not  troubling  you ;  I  am  standing  on  the  street."  While  I  was  standing 
there  a  vote  was  snatched  from  one  of  our  voters  by  Thomas  Moss,  and  the  colored 
man  run  in  there  after  him,  and  Mr.  Kline  up  with  his  foot  and  said  "  Get  out  here,  yoa 
son  of  a  bitch!"  D.  A.  Henderson  led  him  to  the  door  by  the  throat,  and  as  he  went 
out  the  door  he  kicked  him.  I  remember  seeing  gentlemen  of  this  town  vote  as  high  a» 
Jir«  times,  and  1  can  name  them  name  by  name. 

Q.  Were  these  men  who  were  armed  with  guns  and  fixed  bayonets  Republicans  or 
Democrats  ? — A.  Democrats. 

Q.  Do  you  know  where  they  got  these  guns  from,  where  they  were  before  they 
brought  them  in  the  street  ? — A.  When  the  military  company  used  to  drill  they  car- 
ried their  guns  home,  but  that  morning  they  came  out  of  Mr.  Henderson's  office. 

Q.  About  how  many  of  them  t — A.  Twenty-five  or  thirty. 

Cross-examination : 

Q.  Can  you  recall  any  time  during  the  day  that  there  were  not  a  good  many  Dem- 
ocrats around  this  box? — A.  If  I  was  to  say  it  was  not  I  might  say  what  was  not  so. 

Q.  Was  there  any  time  that  there  was  not  ? — A.  I  cannot  recall  no  part  of  the  day 
that  there  was  not  a  crowd. 

Q.  They  were  around  there  all  day? — ^A.  All  day. 

Q.  Was  not  the  Republicans  around  this  box  from  the  time  it  opened  until  it- 
closed  ? — A.  They  were  there  as  a  fact,  trying  to  get  in. 

Q.  At  what  time  of  the  day  did  that  four  hundred  men  leave  that  never  cam& 


458  DIGEST    OF   ELECTION    CASES. 

l)ack? — A.  At  the  same  time  when  the  first  riot  rose;  when  the  gnns  were  turned  on 
them,  and  pistols,  to  the  best  of  my  knowledge,  there  were  two  hundred  that  went 
off"  that  time  and  did  not  vote. 

Q.  When  did  the  other  two  hundred  leave? — A.  At  the  second  riot,  which  took 
place  between  2  and  3  o'clock  in  the  evening — in  the  afternoon  like. 

The  spirit  which  actuated  the  political  friends  of  coutestee  at  this 
■court-house  was  manifested  throughout  Aiken  County,  and  the  differ- 
ence in  violence  and  lawlessness  is  only  of  degree. 

At  Summer  Hill  precinct  all  the  managers  were  Democrats,  and  61 
fraudulent  Democratic  ballots  were  stuffed  in  the  box.  In  withdrawing 
this  excess  the  managers  felt  for  Republican  tickets  (pp.  157,  158),  and 
succeeded  in  drawing  out  58  Republican  and  only  3  Democratic  tickets. 
This  was  illegal,  as  it  required  that  the  excess  shall  be  withdrawn  in- 
•differently. 

Silyerton  precinct  is  in  the  vicinity  of  EUenton,  which,  as  already 
stated,  was  the  scene  of  the  riot  in  1876.  At  this  place  a  Republican 
meeting  was  broken  up  by  violence  on  the  part  of  Democrats  on  the 
Saturday  preceding  the  day  of  election,  and  J.  H.  Holland,  a  Repub- 
lican leader  who  had  been  appointed  a  supervisor  for  Miles's  Mills  pre- 
cinct, was  one  of  the  speakers.  He  was  most  cruelly  beaten  by  a  por- 
tion of  the  crowd  attacking  the  Republicans,  and  was  prevented  by 
these  disturbers  of  the  Republican  meeting  from  returning  home  on  the 
train,  as  he  had  come.  Consequently  he  was  forced  to  walk  home,  a 
•distance  of  40  miles,  through  swamps  and  woods.  On  the  day  of  elec- 
tion the  Republicans  were  driven  from  Silverton,  and  not  a  single  one 
of  them  permitted  to  vote  at  that  place  (pp.  154,  155,  156). 

J.  P.  Spells  testifies : 

Question,  Who  were  these  men  who  assaulted  these  Republicans  and  drove  them 
■away;  were  they  Republicans?  What  were  their  politics? — Answer.  The  Democratic 
red-shirt  rifle  clubs  from  Silverton.  I  heard  one  gentleman  say  it  was  the  Silverton 
crowd. 

Q.  Were  there  many  of  them  there  Democrats  ? — A.  I  might  guess  about  two  hun- 
•dred  in  the  crowd. 

Q.  That  came  over  from  Silverton  ? — A.  Yes,  sir. 

Q.  They  were  a  large  crowd? — A.  Yes,  sir. 

Q.  Were  there  many  Democrats  there  besides  these ? — A.  Yes,  sir;  about  seventy 
•or  seventy-five;  they  came  and  met  them. 

Q.  What  time  in  the  morning  did  this  shooting  commence? — A.  About  9  o'clock. 

Q.  Had  there  been  any  disturbance  before  that  ? — A.  No,  sir ;  the  shooting  com- 
menced by  these  men  around  the  house. 

Q.  What  time  did  that  shooting  commence? — A.  That  was  just  before  9  o'clock 
■when  this  crowd  at  the  house  commenced  shooting.  Then  I  saw  the  crowd  coming 
•up  shooting,  and  that  was  the  crowd  that  ran  the  Republican  voters  from  the  poll. 

Q.  Who  were  these  men  that  made  threats  against  you  ? — A.  They  were  Democrats. 

Q.  W^ere  there  many  Republicans  driven  from  the  polls? — A.  At  that  time  there 
was  about  one  hundred  that  ran  off  to  the  swamp. 

On  cross-examination : 

Q.  About  how  many  men,  white  and  colored,  were  there  when  this  crowd  came  up 
from  Silverton? — A.  I  suppose  there  was  about  seventy-five  white  and  about  one 
linndred  colored. 

Q.  Did  you  see  these  people  go  into  the  swami)? — A.  Yes,  sir.  I  was  standing  op- 
posite the  door,  and  saw  them  when  they  were  going  from  the  poll,  and  this  crowd 
pursued  them  there  before  they  returned  to  the  house. 

See  also  the  testimony  of  D.  Birg  (p.  130) : 

Q.  Did  you  vote  at  all  at  that  election  ? — A.  No,  sir. 

Q,  Why  not  ? — A.  I  went  to  Low  Town,  and  before  I  got  a  chance  to  vote  there 
they  wanted  some  one  to  carry  some  tickets  down  to  Silverton,  and  I  thought  I  would 
Jhave  a  chance  to  vote  there,  but  could  not. 

Q.  Why  couldn't  you  vote? — ^A.  Because  the  white  people  had  driven  all  the  col- 


SMALLS    VS.    TILLMAX.  459 

ored  people  off;  they  said  there  were  uo  tickets  there;  I  told  them  I  had  tickets; 
they  said  there  was  uo  manager  there  to  take  charge  of  them  ;  I  told  them  to  go  to 
Low  Town ;  I  met  some  white  people  coming  up  the  road,  and  as  we  were  coming  to 
Low  Town  they  met  these  black  people,  and  they  ran  them  off.  I  heard  not  all  of 
them  got  to  Low  Town  at  all. 

Q.  You  met  a  party  of  colored  men  that  were  going  to  Silverton  ? — A.  Yes,  sir  ;  and 
told  them  to  go  to  Low  Town. 

Q.  Did  you  go  back  to  Low  Town,  Wells  ? — A.  Not  to  the  poll.  There  was  not  a 
colored  man  there  ;  they  had  run  them  oft'. 

Testimony  of  George  Washington  (p.  133) : 

Q.  Where  did  these  Democrats  come  from  that  did  this  shooting ;  did  they  belong 
around  there,  or  come  from  somewhere  else  t — A.  A  little  way  off  from  there,  about 
live  or  six  miles. 

Q.  From  which  way  ? — A.  Towards  Ellenton. 

And  on  cross-examination  (p.  155) : 

Q.  How  many  colored  men  left  when  you  did  ? — A.  About  fifteen. 

Q.  How  many  did  yon  leave  there? — A.  I  left  about  one  hundred;  but  some  of 
them  beat  me  home  and  I  started  before  them. 

Q.  Don't  you  know  that  this  crowd  that  came  by  your  house  had  toted  at  Silverton, 
and  had  come  to  Low  Town  to  vote  again  ? — A.  The  colored  men  don't  do  such  as 
that ;  the  white  men  will  do  that,  but  there  was  not  but  a  single  vote  cast  by  a  colored 
man. 

And  George  Washington  was  correct ;  not  one  Republican  vote  is 
counted  at  Silverton. 

At  Windsor  the  Republican  who  had  the  tickets  for  his  party  for 
distribution  to  voters  was  stricken  and  his  life  threatened  if  he  did  not 
leave.  In  consequence  of  this  there  were  no  ballots  for  the  Republican 
voters.     See  testimony  of  William  Trowell  (p.  136) : 

Q.  What  time  did  you  get  there  f — A.  Between  10  and  11  o'clock  when  I  got  there. 

Q.  Did  you  vote  ? — A.  No,  sir. 

Q.  Why  not  f — A.  Well,  there  w  as  no  tickets  there. 

Q.  Did  you  see  any  other  men  there  who  wanted  to  vote  and  could  not  vote  be- 
cause there  were  no  tickets  there  ? — A.  I  seen  nine  men  there  besides  myself,  and 
asked  them  if  they  had  voted,  and  they  said  not,  because  they  could  not  get  any 
tickets. 

Q.  What  ticket  did  vou  want  to  vote  f — A.  The  Republican  ticket,  if  I  voted 
at  all. 

Q.  Straight  ? — A.  Straight  right  through. 

Q.  Did  these  men  tell  you  what  ticket  they  wanted  to  vote  t — ^A.  They  said  they 
wanted  to  vote  the  Republican  ticket.     Some'l  knew  and  some  I  did  not. 

See  also  the  testimony  of  General  Piper  (p.  140) : 

Q.  Why  did  yon  leave  ? — A.  This  man  John  Goss 

Q.  Is  he  a  Democrat  or  Republican  ? — A.  A  Democrat.  He  came  up  and  asked  me 
why  I  was  there  taking  the  names.  I  told  him  I  was  appointed  by  the  chairman  of 
the  Republican  party  to  see  how  many  men  voted  the  Republican  ticket.  He  said, 
"To  see  how  many  damn  rascals  like  you  there  are,"  and  he  made  a  grab  at  my  book. 
In  that  time  another  man  came  up  and  he  knocked  me  in  the  mouth.  He  asked  me  if 
I  wanted  his  stick.  I  told  him  no,  and  he  struck  the  man  with  tickets ;  with  that  he 
jammed  me  w  ith  his  pistol. 

Q.  How  many  pistols  did  you  see  ? — A.  Five  or  six. 

Q.  Did  they  gather  around  the  ticket  distributer,  too? — A.  Yes,  sir;  me  and  the 
ticket  distributer  were  together,  and  there  was  about  100  around  us 

Q.  Democrats,  you  say  ? — A.  Yes,  sir. 

Q.  Did  many  of  them  have  pistols  or  guns? — A.  I  did  not  see  any  guns  ;  I  saw 
several  pistols. 

The  only  contradiction  or  explanation  of  this  testimony  is  that  of  Trial 
Justice  Keenan,  on  p.  307,  who  expressly  says  that  he  was  at  one  end  of 
Windsor  and  the  box  at  the  other ;  and  he  therefore  speaks  ftom  hear- 
say. 

At  Hankerson  &  Page's  Store  (pp.  188,  190,  192)  the  box  had  26 
fraudulent  Democratic  ballots  stuffed  in  it,  and  during  the  progress  of 


460  DIGEST    OF    ELECTION    CASES. 

the  election  the  Democrats  were  shooting  off  pistols,  and  carried  oflf  a 
clerk  who  was  keeping  a  list  of  the  Republican  voters  and  whipped  him 
with  switches  until  he  bled. 

E.  S.  Green  (p.  192)  testifies  that  he  was  born  6th  of  May,  1859,  and 
as  follows : 

Q.  Did  you  vote  T — A,  No,  sir. 

Q.  Did  you  intend  to  vote  f — A.  Yes,  sir. 

Q.  What  ticket  did  you  intend  to  vote  ? — A.  The  Republican  ticket. 

Q.  Whose  name  on  it  for  Congress  ? — A.  Robert  Smalls. 

Q.  Did  you  vote  f — A.  No,  sir. 

Q.  Why  not  ? — A.  They  told  me  I  was  not  of  age. 

Q.  Who  told  you  you  were  not  of  age  I — A.  Those  white  fellows  down  there. 

Q.  Did  they  prevent  you  ? — A.  They  told  me  it  was  no  use  to  go  in  there,  I  was  not 
of  age;  and  I  did  not  care  to  insist  to  go  in  there. 

Q.  What  were  they  doing  ? — A.  Shooting  and  hallooing. 

Q.  What  did  they  do  with  you  afterwards  ? — A.  They  whipped  me. 

Q.  What  did  they  do  with  you  when  they  said  you  could  not  vote  ? — A.  They  turned 
my  head  and  said  I  could  not  vote. 

Q.  Why  didn't  you  go  up  and  put  yonr  vote  in,  anyway? — A.  There  was  a  crowd, 
there,  and  I  did  not  care  to  insist  upon  it. 

Q.  Were  you  afraid  to  do  so? — A.  Yes,  sir. 

Q.  Were  you  afraid  to  do  so  because  of  the  shooting  and  threats  around  there  ? — A. 
Yes,  sir. 

Q.  What  were  you  doing  there  ? — A.  I  was  taking  names  down  there.  They  made 
me  stop. 

Q.  How  did  they  make  you  stop  ? — A.  They  said  I  should  not  take  any  more  names, 
and  I  put  the  book  up.  Then  a  colored  man  came  over  and  said  I  had  better  go  to 
his  house,  as  they  were  cursing  and  hallooing  so  around  there,  until  that  crowd  left. 

Q.  Did  you  go  to  his  house  ? — A.  No,  sir, 

Q.  Why  not  ? — A.  I  was  not  there  more  than  five  minutes  when  they  carried  me 
out  in  the  woods  and  made  four  or  five  more  hold  pistols  over  me ;  and  then  they  cut 
a  switch  and  whipped  nae. 

Q.  Whipped  you  badly  ? — A.  Yes,  sir. 

Q.  Bring  any  blood  ? — A.  Yen,  sir. 

Q.  What  did  they  whip  you  for;  did  they  say? — A.  Because  I  went  there  to  take 
names. 

Q.  For  the  Republicans? — A.  Yes,  sir. 

At  Creed's  Store  (pp.  73-182)  the  adherents  of  the  contestee  raised  a 
disturbance  by  shooting  among  the  Republican  voters,  and  rushed  into 
the  school-house  where  the  poll  was  held,  saying,  "Kill  the  damned 
niggers,  for  they  have  no  business  here  ;  run  them  out."  One  of  the 
managers  advised  the  supervisor  to  leave,  and  after  that  the  Democratic 
party  had  the  count  as  it  pleased.  The  Democratic  supervisor  admits 
that  the  box  had  a  plethora  of  votes,  but  could  not  tell  what  number 
were  drawn  out. 

Alex.  Williams  (p.  73),  supervisor  at  Creed's  Store,  testifies  as  follows : 

Q.  Did  you  discharge  the  duties  of  supervisor  to  the  closing  of  the  polls  ? — A.  I  did 
not. 

Q.  Why? — A,  About  5  o'clock  p.  m.  the  Democrats  begun  shooting  at  and  knock- 
ing some  colored  men,  and  then  came  running  in  the  house  where  I  was.  I  asked 
one  of  the  managers  if  it  was  safe  for  me  to  stay  there.     He  said,  no  ;  he  tholight  it 

was  best  for  me  to  get  out  of  the  way.     The  crowd  came  in  saying,  "  Kill  the  d d 

niggers,  for  they  have  no  business  here ;  run  them  out."  I  then  squeezed  through 
the  crowd  and  got  out.  Mr.  Kreps,  the  manager  who  advised  me  to  leave,  was, 
when  I  left,  walking  about  in  the  room  where  the  box  was  with  a  double-barrel  gun 
under  his  arm. 

L.  B.  Coker  (p.  182)  testifies : 

Q.  Which  man? — A.  The  supervisor.  The  Democrats  said,  "Let's  go  in  and  take 
that  damn  son-of-a-bitch  out,"  alluding  to  the  Republican  supervisor. 

Q.  What  did  he  do  ?— A.  I  don't  know  what  he  did. 

Q.  Did  he  stay  in  the  poll  ? — A.  I  don't  know ;  I  made  my  escape  as  soon  as  I  could, 
and  left. 


SMALLS    VS.    TILLMAN.  461 

Q.  What/became  of  the  other  Eepnblicaus  that  were  there? — A.  They  ran  away 
before  I  did. 

At  Fountain  Academy  (p.  79)  a  party  of  Democrats  around  drove 
sixty  Republicans  from  the  poll  (p.  79),  IsT.  J.  Parker  testifies  as  fol- 
lows: 

Mr.  Courtney  came  out,  cocked  his  gnn,  cursed  us.  I  left  them  there  and  went  a 
little  way  for  a  drink  of  water.  On  my  return  I  saw  the  crowd  of  colored  men,  some 
fifty  or  sixty,  running  from  the  poll.  When  I  got  up  to  the  poll  I  saw  Mr.  Courtney 
striking  the  colored  men  with  a  gun.     Some  other  white  men  had  pistols  in  their  hands, 

and  said  to  the  colored  men,  "You  d d  niggers,  if  you  don't  leave  here  we  will 

blow  your  God  d d  brains  out."    They  followed  the  colored  men  as  they  ran,  and 

threw'  knots  at  them  and  beat  them  over  the  lipad.  Mr.  Courtney  struck  one  colored 
man  in  the  mouth  and  caused  it  to  bleed.  After  the  colored  m«n  left,  the  crowd  of 
white  men  went  to  Henry  Peterson's  house  and  asked  him  if  he  had  anything  they 
could  get  to  feed  their  horses.  Mr.  Peterson  told  them  he  had  nothing  that  ho  could 
spare. 

Q.  Did  you  go  off  with  the  crowd  of  colored  men? — A.  Yes.  We  stopped  against 
Peterson's  house  and  consulted  whether  to  go  back  to  the  poll  or  not.  By  this  time 
Hoyt  Jordan,  who  had  on  a  badge  and  acted  as  marshal,  asked  what  was  the  matter. 
From  one  to  another  began  telling  him  what  had  happened.  Mr.  Bill  Jordan  came 
up  and  told  ns  to  go  back  to  the  poll  and  vote ;  that  the  trouble  was  all  over.  Some 
of  them  started  back  on  Capt.  Bill  Jordan's  word.  Mr.  Hoyt  Jordan  called  me  to  him 
and  advised  me  to  take  my  men,  meaning  the  Republicans,  and  go  home.  He  had  said 
before  that  we  had  better  not  go  back  to  the  poll — if  we  did  there  would  be  trouble, 
and  that  if  one  man  was  killed  there  that  day,  many  would  be  killed.  We  did  not  go 
back. 

Q.  Why  did  not  you  and  your  friends  go  back  ? — A.  I  was  afraid  to  go  back  myself 
and  the  others,  so  expressed  themselves. 

At  Kneece's  Mill  (pp.  77-184)  a  similar  party  from  Edgefield  County 
intimidated  and  obstructed  the  voters,  took  from  the  supervisor  his  poll- 
list  and  tore  it  up,  declaring,  "  This  is  Sbwhite  man's  country  and  we  intend 
to  rule  it,"  and  allowed  him  twenty  minutes  to  gjBt  out  of  the  way. 

kneece's  MILL. 

Peter  Waggles,  the  United  States  supervisor,  testifies  (page  184 :) 

Q.  Did  you  keep  a  poll-list? — A.  Yes,  sir. 

Q.  Did  the  Democratic  supervisor  keep  a  poll-list? — A.  He  did  not. 

Q.  Were  you  present  when  the  poll  closed  ? — A.  I  was  not. 

Q.  Why  not  ? — A.  I  was  prevented. 

Q.  Prevented  how  t — A.  My  poll-list  was  taken  away,  and  I  was  driven  from  the 
poll. 

Q.  What  time  in  the  day  did  this  happen  ? — A.  About  twenty  minutes  to  four. 

Q.  Up  to  that  time  had  everything  been  quiet  and  orderly  ? — A.  There  was  whoop- 
ing, and  hallooing,  and  shooting  all  day. 

Q.  Much  of  it? — A.  Occasionally  there  would  be  the  firing  of  a  pistol. 

And  on  page  185 : 

Q.  What  was  the  shooting  for  ? — A.  These  men  were  riding  from  one  poll  to  the  other. 
When  they  would  come  in  squads  they  would  yell  and  halloo  and  shoot  their  pistols. 
The  poll  I  was  at  was  between  two  polls. 

Q.  They  would  pass  from  your  poll  and  go  to  the  others? — A.  Yes,  sir. 

Q.  At  what  time  in  the  day  did  you  leave  the  poll? — A.  About  twenty  minutes  to 
four. 

Q.  Why  did  you  leave,  that  is,  what  occurred  to  drive  you  away  ? — A.  I  was  ordered 
away,  and  my  poll-list  taken  away  and  torn  up. 

Q.  By  whom  ? — A.  A  party  of  white  men. 

A.  Holmes  (p.  77)  testifies : 

Q,  Did  these  men  remain  there  ? — A.  They  remained  about  li  or  2  hours ;  they  then 
left,  saying  that  they  were  going  to  Holson's  Cross-Roads. 

Q.  Did  they  come  back? — A.  Yes;  they  came  when  it  was  time  to  count  the  votes, 
And  brought  others  with  them. 

Q.  Did  any  other  men  come  np  there  on  horseback  ? — A.  Yes. 

Q.  Do  you  know  Peter  Waggiels  ? — A.  Yes. 


462  DIGEST  OF  ELECTION  CASES. 

Q.  Did  you  see  him  on  that  day? — A.  Yes;  I  went  with  him  to  the  poll. 

Q.  In  what  capacity  was  he  there? — A.  United  States  supervisor. 

Q.  Did  he  keep  a  poll-list? — A.  Yes. 

Q.  From  what  time  and  to  what  time  did  he  keep  this  list  ? — A.  From  6  a.  m.  to 
about  half  past  eleven  o'clock  a.  m. 

Q.  Why  did  he  not  keep  it  longer  ? — A.  I  was  not  there  when  he  stopped  keeping 
the  list,  and  don't  know  why  he  stopped;  I  went  off,  and  when  I  came  back  I  saw 
them  leaving ;  they  walked  off  as  if  they  were  afraid. 

At  Jordan's  mill  (p.  70  and  72)  the  supervisor  was  not  permitted  to 
see  the  box  at  the  opening  of  the  poll,  as  the  law  requires  it  to  be  pub- 
licly opened ;  about  fifty  ballots  were  stuffed  into  this  box.  The  man- 
ager's clerk  thought  there  were  not  so  many  by  his  poll-list,  but  he 
seems  to  have  left  the  poll  several  times,  and  his  denial  of  having  drawn 
a  knife  on  the  supervisor  is  contradicted  by  three  witnesses.  Several 
voters,  who  are  specifically  named,  are  proven  to  have  voted  here  and 
at  Hutto.    Mr.  W.  S.  Salley  (p.  72)  testifies  as  follows : 

Q.  State  how  the  voters  were  sworn. — A.  While  the  voters  were  being  sworn  some 
of  them  would  take  their  hands  down  and  would  not  be  sworn,  but  would  vote.  Mr. 
James,  the  Republican  supervisor,  called  the  attention  of  the  managers  to  this  sev- 
eral times. 

Q.  Did  you  or  did  you  not  see  a  number  of  men  come  to  that  poll  wearing  red  shirts 
and  vote  there  ? — A.  I  did.     They  voted  and  went  from  there  towards  Hutto's  poll. 

Q.  Did  you  recognize  any  of  them  ? — A.  Yes ;  John  Cook,  Larking  Garvin,  and 
Doc  Abels ;  those  are  all  that  I  knew. 

Q.  To  what  political  party  do  they  belong  f — A.  To  the  Democratic. 

The  swearing  of  the  elector  is  a  check  on  repeating  and  is  required 
by  law,  but  the  law  was  of  secondary  importance  to  the  partisan  mana- 
gers of  this  poll. 

The  statements  represent  this  county  as  casting  6,447  votes,  whereas 
by  the  census  of  the  same  year  there  were  only  5,985  males  over  twenty- 
one  years  of  age,  so  that  if  every  elector  had  voted  there  are  562  more 
votes  than  voters,  and  this,  too,  in  the  face  of  the  fact  that  hundreds 
of  voters  were  excluded  from  the  polls.  The  testimony  shows  that  in 
this  county  the  vote  was  essentially  upon  the  color  line,  and  according 
to  the  census  of  the  same  year  there  were  only  2,873  white  males  over 
twenty-one  years  old,  so  that  if  every  one  had  voted  for  contestee  it 
would  require  2,107  colored  votes  to  have  given  the  contestee  the  4,980 
votes  claimed  for  him. 

In  1876  both  parties  had  a  full  national.  State,  and  county  ticket  in 
nomination,  and  the  campaign  is  historic,  yet  the  whole  vote  of  this 
county  that  year  was  only  4,820.  The  pretended  vote  of  1880  is  an  in- 
crease of  1,627,  indicating  an  increase  of  more  than  25  per  cent,  of  votes 
for  a  campaign  in  which  only  a  national  ticket  was  run,  and  yet  as  an 
illustration  it  may  be  noted  that  at  Silverton  precinct  in  1880  not  a  sin- 
gle Republican  vote  is  reported,  while  in  1876  it  counted  232  for  the 
present  contestant,  and  only  182  for  present  contestee.  In  1876,  at 
Aiken  Court- House,  the  contestant  received  a  majority  327  over  the 
present  contestee,  whilst  in  1880  the  present  contestee  is  reported  to 
have  received  a  majority  of  336. 

Corrected  vote  of  Aiken  County  is  stated  : 

Tillman 4,980 

Deduct  Aiken  C.  H 719 

Deduct  Silverton 225 

Deduct  Creed's  Store 2.31 

Deduct  Windsor 396 

1,571 

3,409 


SMALLS    VS.    TILLMAN.  465 

Small's 1, 467 

Deduct  Aiken  C.  H 383 

Deduct  Silverton 

Deduct  Creed's  Store 16 

Deduct  Windsor 10 

40» 

1,05» 

Tillman's  majority 2.351 

HAMILTON  COUNTY— BRUNSON  POLL. 

One  of  contestee's  witnesses  testifies  that  there  were  over  200  ballots 
stuffed  into  the  Brunson  box,  whilst  another  of  them  (page  100)  says 
there  were  232;  that  the  Democratic  ballots  "were  thinner,  and  I  think 
smaller."  As  to  distingnishiugthem  by  the  touch,  he  says,  "Not  always; 
could  sometimes.  It  was  more  from  the  peculiar  manner  in  which  the 
Eepublican  ballots  were  folded  that  I  could  tell  them  from  the  feeling^ 
when  in  my  hands."  The  terrorizing  and  intimidation  at  this  poll  seems 
to  have  been  fearful.  The  night  before  the  election  armed  bodies  of 
drunken  Democrats  rode  through  the  neighborhood  discharging  arms, 
threatening  and  abusing  Republicans.  This  was  continued  next  day  at 
the  polls,  which  were  held  in  an  old  store-house  filled  with  these  disor- 
derly people,  whilst  the  door  was  guarded  and  only  one  Republican  ad- 
mitted at  a  time.  The  testimony  of  E.  A.  Brabham  gives  a  shocking^ 
account  of  the  farce  of  the  election  and  of  the  repeating  by  Democrats^ 
which  is  fully  corroborated  by  other  witnesses. 

EARLY  BRANCH. 

At  Early  Branch  there  was  a  crowd  of  drunken  Democrats  who  rode 
between  there  and  People's  poll  repeating  and  stuffing  the  box,  raising, 
rows,  threatening  Republican  voters,  beating  them,  discharging  pistols^ 
and  behaving  in  the  most  riotous  manner.     (Record,  pp.  107,  111,  413^ 
and  414.) 

BEACH  BRANCH. 

At  Beach  Branch  the  managers  refused  to  allow  the  supervisor  to  act^ 
and  he  had  to  leave  in  order  to  avoid  being  forcibly  ejected.  A  squad 
of  Democrats  took  from  the  messengers  1,200  Republican  tickets,  and 
threatened  to  kill  them  if  they  went  to  the  polls.  Not  a  single  Repub- 
lican was  permitted  to  vote  there.     (Record,  pp.  5,  7,  8,  and  12.) 

LAWTONVILLE. 

At  Lawtonville  the  poll  was  held  right  at  the  door  at  the  top  of  the 
staircase  running  up  on  the  outside  of  the  building.  A  large  number 
of  drunken  Democrats  were  on  hand,  uniformed  in  red  shirts,  and  well 
armed.  They  led  the  supervisor  down  stairs,  and  warned  him  "  to 
escape  for  his  life."  Later  in  the  day  a  party  of  them  charged  upon  the 
crowd  of  Republican  voters,  one  of  whom  received  a  severe  saber-cut, 
and  three  were  shot,  whilst  others  were  beaten  with  clubs.  These  facts 
are  fully  substantiated  by  the  evidence.  (Record,  pp.  Ill,  113, 115. 119, 
and  122.) 

It  was  claimed  in  the  argument  for  the  contestee  that  no  notice  of 
contest  was  given  as  to  this  poll,  and  possibly  some  others  in  this  county  ; 


464  DIGEST    OF    ELECTION    CASES. 

but  we  are  of  the  opinion  that  it  is  amply  covered  by  the  4th  and  15th 
epecifications. 

It  is  a  curious  and  very  contradictory  fact  that,  whilst  it  is  claimed 
and  certified  that  4,165  votes  were  polled  and  counted  in  this  county, 
the  census  shows  that  there  were  only  3,828  males  over  twenty-one 
jears.  This,  too,  in  the  face  of  the  testimony  that  a  large  number  of 
voters  were  driven  from  the  polls  without  voting.  By  the  census,  the 
white  males  twenty-one  years  old  were  only  1,381,  whilst  the  vote  cer- 
tified for  the  contestee  is  2,590,  and  this,  too,  when  his  friends  and 
adherents  were  riding  over  the  county  on  the  night  previous  and  on  the 
day  of  election,  uniformed  and  armed,  threatening,  beating,  and  shoot- 
ing the  colored  people  to  prevent  them  from  voting  the  Eepublican 
ticket.  There  is  absolutely  no  testimony  of  colored  men  voting  the 
Democratic  ticket  which  will  in  any  wise  explain  the  statement.  The 
only  attempt  at  an  organization  of  colored  Democrats  is  shown  in  the 
testimony  of  George  Bellinger  (p.  557),  in  which  he  says  the  largest 
number  ever  answering  were  22,  and  in  his  statement  of  the  oflQcers  is 
Daniel  Platts,  as  vice-president,  who  testifies  (p.  412)  that  he  did  not 
vote  that  ticket  and  joined  a  Eepublican  club,  in  which  he  remained 
■during  the  campaign.  The  utter  failure  of  the  colored  Democratic  club 
is  fully  shown  on  page  416.  Indeed,  it.would  be  most  extraordinary  if 
any  number  of  colored  people  should  vote  the  Democratic  ticket,  in 
view  of  the  overwhelming  testimony  of  the  lawless  violence  of  "  the 
red-shirt  Democracy,"  not  only  in  this  county  but  in  four  others  of  this 
district. 

The  only  way  by  which  such  a  statement  of  the  vote  of  this  county 
-can  be  explained  is  by  the  method  illustrated  so  well  at  Brun son's,  as 
to  the  facts  of  which  the  Democratic  manager  and  supervisor,  as  well 
as  Republicans,  testify.  On  the  first  count  this  box  contained  "  some- 
thing over  500";  the  excess  over  the  poll-list  "was  near  200"  (see 
testimony  of  Democratic  supervisor,  p.  101),  whilst  the  manager  (Dem- 
ocratic) who  drew  them  out  says  "that  excess  was  about  232"  (p. 
100).  And  yet  this  box  is  certified  to  as  containing  356  legal  votes, 
and  it  is  on  such  official  sfatements  that  the  contestee  has  received  the 
•certificate  and  now  occupies  a  seat  in  the  House  as  the  Representative 
from  this  Congressional  district. 

References  to  testimony  for 


HAMPTON  COUNTY. 


Brun  son: 
Hector  Loadholts,  p.  13. 
Aaron  Smith,  p.  14. 
Benjamin  Halford,  p.  89. 
Moses  Terry,  p.  95. 
Isaac  Thompson,  p.  99. 
E.  B.  Brabham,  p.  414. 

Early  Branch : 
Moses  Brown,  p.  107. 
Baalem  White,  p.  414. 

Beach  Branch: 
Edmond  Riley,  p.  12. 
Wilsim  McTeer,  p.  8. 
Frank  Saxon,  p.  5. 
William  Wright,  p.  7. 


SMALLS    VS.    TILLMAX.  465 


Lawtonville: 
Ben.  Shepperd,  pp.  113  and  114. 
Erasmus  Black,  p.  115. 
Lucina  Barnes,  p.  110. 
Albert  Hunter,  p.  122. 

Varnsville : 
S.  J.  Gantt,  p.  125.  ^ 

John  A.  Brown,  p.  103. 

BRUNSON'S — HA3IPT0X   COUNTY. 

Hector  Loadholts  (p.  13)  testifies : 

Q.  Why  ? — A.  I  came  to  Bninson  with  Small's  ticket  in  my  pocket,  and  intended  to 
Tote  it  if  I  could  vote  at  all ;  but  when  I  went  into  the  house  where  some  one  told  me 
the  box  was  a  crowd  of  white  men  met  me  with  clubs  in  their  hands.  They  took 
hold  of  me.  They  pulled  and  jerked  me  about,  and  they  showed  me  a  red  ticket  and 
told  me  that  I  must  vote  it.  While  they  were  reading  the  names  on  the  ticket  I  got 
away  from  them  and  got  out  of  there  as  I  could  and  left  for  home. 

Q.  Why  did  you  leave  for  hoiue  ? — A.  Because  if  I  had  staid  there  and  not  voted 
that  ticket  that  they  were  reading  to  me  they  would  have  given  me  the  very  devil 
with  those  sticks  they  had,  just  like  they  did  here  in  1878.  ' 

Aaron  Smith  (p.  1-4)  testifies  : 

Q.  Why  do  you  say  it  was  worse  than  yon  ever  saw  ? — A.  Because,  on  the  night  be- 
fore the  election  the  Democrats  gathered  here  (from  God  knows  where)  until  there 
must  have  beeu  hundreds  of  them  here,  and  they  hoop  and  hollowed  and  shot  off 
guns  aud  something  that  sounded  like  a  cannon  all  night ;  they  kept  such  a  noise, 
and  kept  coming  to  Mr.  Brabham's  house  and  calling  him  and  trying  to  get  him  out 
of  his  house,  and  kept  threatening  to  break  into  his  house,  that  none  of  uscould  sleep 
a  wink  that  night. 

Benjamin  Halford  (p.  89)  testifies : 

Q.  Who  had  the  Republican  tickets  on  that  day  for  distribution  ? — A.  I  had  them. 

Q.  Did  you  meet  with  any  trouble  in  the  distribution  of  your  tickets?  If  so,  state 
what. — A.  I  was  standing  in  front  of  the  house  in  which  the  ballot-box  was,  about 
five  steps  from  the  door,  with  about  four  hundred  ballots  in  my  hand.  Mr.  James 
Mulligan,  one  of  the  States  marshah,  walked  up  to  me  and  told  me  to  give  him  those 
tickets  I  had.  I  refused  to  give  them  to  him.  He  then  said  he  was  authorized  to 
take  them,  and  put  his  hand  in  my  pocket  to  take  them  out.  I  put  my  hand  in  my 
pocket  at  the  same  time  and  caught  the  tickets  amf  held  them  tightly.  I  told  him 
that  if  he  wanted  to  see  them  I  would  give  him  as  many  as  he  wanted;  but  he  in- 
sisted that  he  must  have  them  all,  and  kept  pulling  them  and  trying  to  tear  them  out 
of  my  hands.  After  he  had  torn  the  ends  off  some  of  them  he  held  on  to  them  and 
called  to  the  men  standing  around  to  hand  him  a  knife.  Mr.  J.  Chisolm  Youmans 
stepped  up  to  him  and  handed  him  (Mr.  Mulligan)  a  knife.     After  he  (Mulligan)  got 

the  knife,  he  said :   "Now  I'll  cut  your  d d  throat."    I  told  him  to  cut  it  and  then 

he  could  get  the  tickets.  He  then  cut  the  tickets  in  two.  I  had  hold  of  each  end  of 
the  tickets,  and  he  cut  them  iu  the  middle  between  my  hands.  Dr.  Wyman,  a  Demo- 
crat, who  was  standing  near  by  and  saw  it  all,  said  to  Mr.  Mulligan,  *'  You  have  done 
that  wrong.  He  offered  you  as  many  of  the  tickets  as  you  wanted,  and  you  should 
not  have  cut  them."  Mulligan  then  left  me,  and  I  said  a  few  words  about  what  he 
had  done,  and  Mr.  Chisolm  Youmans  ordered  me  to  shut  up,  putting  his  hand  in  his 
pocket  at  the  same  time  to  pull  out  something,  but  the  crowd  rushed  up  to  him  and 
stopped  him. 

Q.  What  kind  of  tickets  were  those  Mr.  Mulligan  cut  up  in  your  hands  T — A.  They 
were  headed  Union  Republican  ticket,  and  had  Garfield  on  it  for  President  of  the 
United  States,  and  Robert  Smalls  for  Congress. 

Moses  Terry  testifies  (page  95) : 

Q.  Who  was  distributing  tickets  on  that  day? — A.  Ben  Attwood. 

Q.  Were  they  Republican  tickets  ? — A.  They  were ;  General  Garfield  for  President 
and  General  Smalls  for  Congress. 

Q.  Was  he  the  only  one  distributing  tickets  that  day? — A.  He  was  the  only  one 
distributing  Republican  tickets,  and  had  there  been  auy  other  distributing  them  I 
should  have  seen  it. 

H.  Mis.  35 30 


466  DIGEST    OF    ELECTION    CASES. 

Q.  Was  there  any  attempt  made  to  take  these  tickets  from  him  f — A.  Tliere  -was ; 
Mr.  Mulligan  stepped  up  to  him  and  asked  him  to  let  him  see  the  tickets.  Attwood 
told  him  he  would  give  him  as  many  as  he  wanted,  but  Mulligan  said  to  him,  "I  have 
authority  to  take  them  all,"  and  run  his  hand  down  in  Attwood's  jjocket  and  drew 
out  the  tickets.  As  he  did  so  Attwood  caught  the  end  of  the  tickets  in  his  hand.  He 
then  called  for  a  knife,  and  Chisolm  Yoemans  gave  him  a  knife,  and  he  cut  them  ia 
two;  that  is,  Mulligan  cut  them  in  two,  and  said  to  Attwood,  "If  you  don't  mind  I 
■will  cut  your  throat."    So  Attwood  left  him  at  that. 

Isaac  Thompson  (page  99)  testifies : 

Q.  Whowasit  that  objected  to  your  voting  ? — A.  Chisolm  Youman  and  John  Light- 
sey  and  Mr.  William  Causey,  who  struck  me  three  times  and  shoved  me  out  the  house. 

Q.  Did  you  vote  that  day? — A.  No,  sir;  I  did  not  vote  that  day.  I  wanted  to  vote 
the  Republican  ticket,  and  said  that  if  I  could  not  vote  the  ticket  I  wante<l  to  I 
would  not  vote  at  all.  About  twenty  said  to  me  that  if  I  would  vote  their  ticket  I 
could  vote. 

E.  B.  Brabham  (p.  414),  testifies: 

Q.  Where  were  you  on  the  2d  day  of  November  last  ? — ^A.  At  Brnnson  election  poll; 
acted  as  United  States  supervisor  of  election. 

Q.  Was  the  election  quiet  and  orderly  ? — A.  It  was  not.  On  the  evening  previous 
to  the  day  of  election  several  crowds  of  mounted  red-shirters  rode  into  the  town  of 
Brnnson.  Directly  after  dark  they  gathered  around  the  depot  of  the  Port  Royal  and 
Augusta  Railway.  They  whooped  and  yelled.  Hurrahed  for  Hancock,  and  cursed 
Garfield.  They  fired  off  guns  and  exploded  powder  under  an  anvil,  which  explosion 
sounded  like  a  cannon,  and  was  heard  many  miles  from  here.  They  kept  up  this 
shooting  all  night,  and  until  near  sunrise  the  next  morning.  I  went  to  the  poll  at 
about  daylight,  and  found  a  great  many  Democrats  there,  many  of  whom  seemed  to 
be  under  the  influence  of  whisky,  and  seeming  to  have  taken  charge  of  the  poll.  It 
seemed  to  be  the  purpose  of  the  Democrats  to  make  as  much  show  of  violence  as  pos- 
sible, but  not  to  hurt  any  one;  but  when  they  got  their  men  drunk  for  the  pui-pose, 
they  could  not  control  them.  They  knew  that  the  Republicans,  having  been  run  over 
with  horses,  beaten  with  sticks,  and  shot  with  pistols  at  this  poll  on  election  day  in 
1878,  would  be  afraid  to  come  to  the  poll  if  there  was  any  disturbance  about  it.  They 
kept  threatening  to  come  to  my  house,  which  ia  about  one  hundred  and  fifty  or  two 
hundred  yards  from  the  depot,  "and  break  in  on  me."  A  prominent  Democrat  sent  a 
colored  man  to  my  house  with  a  message  to  me,  saying  that  I  had  better  go  away 
from  home  ;  that  those  men  at  the  depot  had  just  agreed  to  come  to  my  house  after 
me,  and  that  if  they  found  me  there  they  would  injure  or  kill  me.  Two  other  Demo- 
crats came  to  my  house,  a  few  minutes  after,  and  advised  me  to  leave.  I  told  them 
that  I  would  go,  but  my  family  was  here.  I  had  nowhere  to  take  them,  and  would 
stay  with  them  if  I  got  killed.  Shortly  after  this  a  crowd  came  ;  called  to  my  gate, 
and  said  that  they  wanted  to  see  me.  I  refused  to  go  out,  and  they  left.  A  few 
minutes  later  another  crowd  came.  They  came  in  my  yard,  and  kuocked  at  my  bed- 
room window,  insisting  that  I  should  get  up,  that  they  wanted  to  see  me.  I  refused 
to  get  up.  They  talked  to  each  other  awhile,  and  left.  I  heard  one  say,  "  Let's  go 
in";  another  said  "No."  After  the  poll  opened  the  Democrats  whom  I  found  there 
early  in  the  morning  kept  up  a  good  deal  of  noise,  appearing  to  be  drunk,  and 
behaved  very  disorderly. 

The  poll  was  held  in  the  back  room  of  an  old  store.  The  voters  had  to  pass  through 
this  old  store  to  get  to  poll.  This  old  store  was  full  of  this  disorderly  crowd  of  Demo- 
crats nearly  all  day.  No  voter  was  allowed  to  enter  without  their  consent.  When- 
ever a  Republican  would  appear  to  the  door  for  entrance,  they  would  crowd  into  the 
door,  yell  and  jeer  at  him,  and  very  often  they  would  hold  sticks  across  the  door  and 
would  not  allow  the  Republicans  to  enter.  In  several  instances  Capt.  John  H.  Light- 
sey  had  to  order  the  door  cleared  before  the  Republicans  could  get  in.  These  block- 
ing the  door  were  mostly  by  members  of  Captain  Lightsey's  red-shirt  cavalry  com- 
pany. Captain  Lightsey  testifies  that  he  came  to  the  poll  directly  after  midnight, 
and  Ihink  he  brouhgt  his  company  with  him. 

After  the  Republican  voter  got  into  the  room  theJDemocrats  would  ask  him  all  sort* 
of  questions,  thereby  detaining  him,  worrying  him  so  that  several  turned  and  went 
out  and  did  not  vote  at  all.  I  noticed  one  Republican  who  tried  to  press  through 
and  get  to  speak  to  the  managers.  As  he  got  to  the  box  several  Democrats  caught 
and  tried  to  pull  him  back ;  he  held  on  to  something  and  they  commenced  beating 
him  on  his  head  with  clubs,  and  he  turned  and  ran  out.  They  would  not  allow 
more  than  one  Republican  to  enter  at  the  time,  and  it  required  considerable  nerve  to 
go  into  the  poll  under  the  circumstances.  Several  Republicans  turned  back  at  the 
door,  and  some  who  entered  was  so  worried  that  they  came  out  before  they  got  a 
chance  to  vote,  and  never  returned, 

Q.  Was  the  election  fair  ? — A.  It  was  not ;  it  was  as  unfair  as  it  could  possibly  be. 


SMALLS   VS.    TILLMAN.  467 

The  commissioners  and  managers  of  election  were  all  Democrats.  I,  as  chairman  of 
he  Republican  party,  applied  to  the  county  election  commissioner  for  one  Republicans 
on  each  board  of  three  managers,  but  did  not  get  one  appointed.  The  Democrats 
voted  tvro  and  more  tickets  folded  together,  thereby  stuflSng  the  box  so  that  a 
very  large  excess  had  to  be  drawn  out  and  destroyed,  which  gave  them  a  chance  to 
destroy  nearly  all  the  Republican  ballots.  After  throwing  out  all  the  ballots  that 
they  were  certain  had  been  voted  inside  other  ballots,  they  had  588  ballots  against 
350  names  on  the  poll-list. 

Q.  George  Bellinger  has  testified  that  he  was  president  of  a  colored  Democratic  club 
of  107  members ;  is  that  true  ? — A.  No. 

Q.  What  means  have  you,  if  any,  for  knowing  it  not  to  be  true  ? — ^A.  There  never 
was  but  one  colored  Democrat  club  organized  in  Hampton  County ;  that  club  broke 
up  duringthe  campaign  of  '78.  George  Bellinger  tried  to  revive  itin  1880,  but  failed. 
I  am  an  eye-witness  to  his  efforts  and  failure.  He  held  a  meeting  to  elect  oflBcers 
and  to  elect  delegates  to  the  Democratic  county  convention.  The  officers  he  elected 
would  not  serve.  Some  of  the  delegates  he  had  elected  would  not  attend  the  con- 
vention.    They  had  joined  a  Republican  club. 

This  i)recinct  your  committee  are  of  opinion  should  be  rejected. 

EARLY  BRANCH. 

Moses  Brown  (p.  107)  testifies  : 

Q.  Where  were  you  at  the  day  of  election  ? — A.  Was  at  Early  Branch  poll. 

Q.  Was  you  there  all  day  T — A.  Yes,  sir;  was  there  all  day. 

Q.  Did  you  see  a  body  of  men  riding  up  to  the  polls  that  day  ? — A.  Yes,  sir ;  I  sup- 
pose some  twenty-five  men  would  come  riding  up  on  their  horses  that  day,  firing  their 
pistols  off;  when  they  came  up  they  would  ride  around  awhile  firing  off  their  pistols, 
and  then  they  got  down  and  voted;  after  that  some  of  them  remained  and  some  got 
on  their  horses  firing  their  pistols,  and  went  off  as  if  they  were  going  to  Peeples  poll 
again. 

Q.  Did  they  come  from  the  direction  of  Peeples  polls  f — A.  Yes ;  came  from  right 
that  side. 

Q.  How  far  is  Peeples'  to  Early  Branch  ? — A.  I  suppose,  from  my  judgment,  it  is 
about  three  and  a  half  miles. 

Q.  Can  you  give  the  names  of  any  of  those  who  came  in  this  body  ? — A.  Yes ;  can 
give  the  names  of  some  of  them ;  there  was  Robert  Nixon,  Oliver  Nixon,  Miles  Nixon, 
Rube  Nixon,  Ed.  Nixon,  W^illy  Taylor,  Mark  Nettles,  Bill  Bruler,  Tom  Gregory,  Eu- 
gene Gregory,  Bill  Allen  (colored  fellow),  Guinney  Wilcox,  Branford  Bruler,' and  I 
believe  that  is  about  all  I  did  see. 

Q.  What  ticket  did  they  vote? — A.  They  voted  the  Democratic  ticket  every  bit. 

Cross-examination : 

The  Democratic  tickets  were  red  and  the  Republican  was  white,  and  they  had  the 
red  ticket. 

Q.  Then  yon  was  standing  near  the  poU  all  day  ? — A.  Yes;  I  was  standing  right  by 
the  window  all  day. 

Q.  How  was  it  then  that  you  saw  the  difficulty  with  this  colored  and  these  white 
men  ? — A.  The  difficulty  was  not  more  than  five  steps  from  the  window. 

Q.  Were  all  the  Republicans  driven  away  before  the  votes  were  counted  ? — A.  Of 
course  ;  they  had  to  go  away  or  be  beaten  with  clubs. 

Q.  Did  you  remain  until  the  votes  were  counted! — A.  No;  I  had  to  leave.  A  white 
man  came  to  me  and  told  me  I  had  better  leave. 

Q.  What  time  did  you  leave? — A.  About  7  o'clock. 

Q.  Who  was  it  that  told  you  you  had  better  leave  ? — A.  Mark  Nettles,  a  white  man 
and  a  Democrat. 

Q.  Where  did  you  go? — A.  I  went  home. 

Baalem  White  (p.  414) : 

Q.  Did  you  vote  ? — A.  I  did  not. 

Q.  "^^^ly  ? — a.  when  I  got  there  about  half  past  ten  a.  m.,  I  saw  hut  few  people ; 
but  shortly  I  saw  a  crowd  of  twenty-five  or  thirty  white  men  on  horses  coming.  Mr. 
Elias  McTeer  came  up  and  handed  me  a  ticket  to  vote,  and  I  opened  it  and  found  that 
there  was  three  tickets  folded  together.  When  he  handed  me  the  ticket  he  started 
to  the  box  and  told  me  to  "  Come  right  on  and  vote,"  and  when  he  looked  back,  I  had 
the  tickets  open.  He  then  asked  me  if  I  had  no  better  sense  than  that.  I  told  him 
that  I  had  opened  the  ticket  to  see  if  it  suited  me.  It  seemed  that  he  did  not  like  it 
for  me  to  open  the  ticket.     I  had  always  been  voting  the  Democratic  ticket ;  but  went  ■ 


4C8  DIGEST  OF  ELECTION  CASES. 

then'  that  day  to  vote  the  strai<?ht  Republican  ticket ;  but  wlieu  I  saw  that  I  would 
create  so  much  ill-felling  by  it  I  would  not  vote  at  all. 

TLe  vote  at  this  precinct  should  be  rejected. 
BEACH  BEANUfl. 

Edmund  Riley  (p.  12)  testifies : 

Q.  Did  yon  get  any  tickets  that  day  ? — A.  We  went  to  Mr.  Brabham,  at  Bruusou, 
for  tickets ;  he  gave  us  some  tickets,  but  when  we  got  about  half  way  from  Bruuson 
to  Beach  Branch  a  crowd  of  Democrats,  who  followed  us  from  Bruuson,  overtook  us 
and  took  the  tickets  from  us, 

Q.  How  did  they  take  the  tickets  from  you  ? — A.  They  rode  up  to  ns,  and  ordered 
us  to  halt ;  they  pointed  pistols  at  us,  and  told  us  that  we  must  give  up  those  tickets. 

Q.  Did  they  threaten  to  do  anything  to  you  if  you  did  not  give  them  up  ? — A.  They 
Baid  they  would  blow  our  damned  brains  out  if  we  did  not  give  them. 

Q.  Did  you  give  them  up  ? — A.  We  hart  to  allow  them  to  take  the  tickets,  because 
there  were  nine  of  them,  and  every  one  of  them  had  pistols  and  sticks,  and  there  were 
tut  four  of  us,  and  not  one  of  us  had  a  pistol  or  stick  or  any  other  weapon. 

Q.  What  did  you  do  after  the  tickfets  were  taken  from  you  I — A.  We  went  on  to 
Beach  Branch,  staid  there  »■  while,  and  went  away. 

Q.  Do  all  the  colored  men  in  your  neighborhood  belong  to  your  club  ? — A.  I  think 
there  is  four  or  five  who  do  not  belong  to  our  club. 

Q.  Did  any  colored  men  vote  the  Democratic  ticket  at  Beach  Branch  ? — A.  Yes  ; 
l)ut  very  few  ;  less  than  ever  have  before.  The  colored  men  were  never  more  united 
than  they  were  in  this  election,  and  I  never  saw  anybody  so  badly  cheated  and  de- 
frauded as  we  have  been  in  this  election. 

Q.  Why  were  you  so  united  in  this  election  ? — A.  We  were  determined  that  Gai'field 
and  Smalls  should  be  elected  if  it  lay  in  our  power  to  do  it. 

Wilson  McTeer  (p.  8)  testifies  : 

Q.  What  did  you  do  when  yon  got  to  the  poll  ? — A.  We  waited  till  about  7  o'clock, 
and  when  we  found  that  there  were  no  Republican  tickets  there  Frank  Saxon,  the 
president  of  our  club,  directed  me  to  take  three  other  men  with  me  and  go  to  Brunson 
in  a  hurry  and  tell  Air.  Brabham,  the  Republican  county  chairman,  to  send  him  some 
tickets.  I  took  Govan  Brookx,  Toney  Moss,  and  Edmund  Riley,  and  we  went  to  Brun- 
son and  got  a  package  of  about  1,200  tickets  from  Mr.  Brabham  and  started  back  to 
Bea>  h  Branch.  We  rode  very  fast.  When  we  had  got  about  three  miles  from  Brun- 
son, and  at  what  is  known  as  the  Hammock  place,  John  Glover,  a  Democrat,  overtook 
us,  and  ran  his  hoi-se  by  us  and  turned  the  horse  across  the  road  ahead  of  us  and  said 
^  close  up."  Then  eight  other  Democrat*  rode  up  to  us  with  sticks  and  pistols  in  their 
hands  and  said,  "  Halt,  you  sons  of  bitches,  and  give  us  those  tickets.  If  you  don't 
give  them  up  we  will  blow  your  d d  brains  out." 

Q.  Did  you  give  the  tickets  up  ? — A.  I  did  not  have  the  tickets  myself,  but  they 
seized  hold  on  me,  and  was  searching  my  pockets  for  the  tickets.  While  they  were 
searching  me  for  the  tickets,  one  of  them  said,  "  There  is  the  son-of-a-bitch  that  has 
them."  Then  they  went  to  Govan  Brooks.  One  of  them  held  a  pistol  to  his  breast 
and  one  held  a  club  over  his  head  while  others  put  their  hands  into  his  pockets  and 
took  the  tickets  out. 

Q.  How  were  those  Democrats  dressed  f — A.  They  were  all  dressed  in  red  shirts  ex- 
cept one,  who  wore  a  red  bow. 

Q.  What  did  they  say  after  they  had  taken  the  tickets  ? — A.  They  told  us  to  go  and 
not  let  them  catch  us  back  that  way  again,  or  they  would  kill  us. 

Q.  Do  you  know  who  those  Democrats  were? — A.  Yes,  some  of  them. 

Q.  Give  me  the  names  of  those  you  know. — A.  Perry  Lynes,  John  Glover,  Billy 
Brouson,  and  Thad.  Bronson. 

Frank  Saxon  testifies  (p.  5)  as  follows : 

Q.  Was  the  election  peaceful  and  quiet? — A.  No. 

Q.  Was  you  allowed  to  discharge  your  duty  as  supervisor  peacefully  and  quietly, 
without  hindrance  or  obstruction  f — A.  No. 

Q.  State  in  what  manner,  then,  you  were  prevented  from  doing  so. — A.  The  mana- 
gers of  the  election  refused  to  allow  me  to  act  as  supervisor  without  going  first  to  a 
trial  justice  and  be  sworn. 

Q.  Had  you  been  sworn;  and,  if  so,  before  whom! — A.  Yes;  before  E.  A.  Brabham. 

Q.  And  you  say  you  did  not  act  as  supervisor  ? — A.  No. 

Q.  Did  you  go  into  the  house  where  the  poll  was  kept? — A.  Yes.    But  when  I  told 


SMALLS    VS.    TILLMAX.  469 

them  that  I  bad  been  sworn  already,  and  tbat  I  would  not  go  to  the  trial  justice  to  be 
sworn  again  they  ordered  me  out  of  the  house. 

Q.  Did  you  make  anj-  attempt  to  remain  in  the  building  ? — A.  Yes ;  I  did  not  go 
ont  until  I  saw  that  they  were  going  to  put  me  out  by  force. 

Q.  Who  w  ere  the  managers  of  election  ? — A.  Richard  Johnson,  John  Griner,  and 
Dr.  W.  T.  Breland. 

Q.  How  did  you  know  that  they  would  pnt  you  out  ? — A.  They  said  they  would  do 
it  if  I  did  not  go  out.  Mr.  Johnson  said  that  if  I  was  allowed  to  act  as  supervisor 
he  would  not  act  as  manager,  and  they  stopped  the  election,  and  seemed  to  be  in  the 
act  of  preparing  to  put  me  out.  I  was  afraid  that  if  I  did  not  go  out  they  would 
hurt  me. 

William  Wrigbt  (p.  7)  testifies : 

Q.  Did  they  both  remain  at  the  box? — A.  The  Democratic  supervisor  did,  but  the 
Republican  supervisor  did  not. 

Q.  Why  did  not  the  Republican  supervisor  remain  at  the  box  ? — A.  Because  the 
managers  of  the  election  would  not  allow  him  to  remain. 

Q.  What  did  the  managers  say  to  him  f — A.  They  asked  the  Republican  supervisor 
to  show  his  authority.  He  did  so.  Then  they  asked  him  if  he  had  been  sworn.  He 
told  them  that  he  had.  They  asked  him  who  swore  hiin.  He  told  them  that  Mr. 
Brabham  had  sworn  him.  Then  they  said  that  he  must  go  to  Mr.  Fitts,  and  be  sworn 
again. 

Q.  How  far  does  Mr.  Fitts  live  from  the  poll  ? — A.  Two  or  three  miles. 

Q.  Did  the  Republican  supervisor  go  to  be  sworn  again  ? — A.  No. 

Q.  What  did  they  do  then? — A.  They  told  him  that  he  must  get  out  of  the'house. 

Q.  What  else  did  they  say  ? — A.  Dr.  Breland  said  that  the  Republican  supervisor's 
commission  was  all  right,  but  Mr.  Griner  and  Mr.  Johnson  said  that  it  was  not,  and 
that  he  should  not  sit  in  the  house. 

Q.  Do  you  think  that  the  managers  would  have  done  anything  to  the  supervisor  if 
he  had  not  gone  out  ? — A.  Yes. 

Q.  Why  do  you  think  so  ? — A.  Because  they  had  stojjped  everything  and  folded  up 
their  papers  and  started  to  put  him  out. 

Q.  Were  the  managers  Democrats  or  were  they  Republicans  ? — A.  They  were  all 
white  Democrats. 

I 

For  the  violence  and  intimidation  shown  at  this  poll,  whereby  Kepub- 
lican  voters  were  prevented  from  counting  their  ballots,  and  for  the 
refusal  to  permit  the  supervisor  to  discharge  his  duties,  your  committee 
are  of  opinion  that  this  poll  should  be  rejected. 

LAWTONVILLE. 

Ben  Shepperd  (page  113)  testifies  as  follows: 

Q.  Where  were  you  at  the  last  election? — ^A.  Was  at  the  Lawtonville  precinct. 

Q.  Was  it  a  quiet  election  that  day  ? — A.  No,  sir  ;  they  commenced  a  row  there  I 
suppose,  near  as  I  can  come  at  it,  about  8  o'clock  a.  m. ;  they  kept  quiet  down  for 
awhile  for  about  one  and  one-half  hour,  then  started  row  again  ;  then  things  went  on 
until  about  4  o'clock  p.  m.,  when  they  started  it  again.  They  threatened  to  light  the 
Republican  party  for  voting ;  they  rebuked  us  by  every  blaspheming  they  could  think 
of;  they  were  armed,  every  Democrat;  most  that  I  seen  had  from  one  to  two  pistols; 
then,  in  the  evening,  at  4  o'clock,  they  rid  oft'  a  piece  and  came  back  and  rid  right  in 
among  the  Republican  party  with  swords  and  clubs;  then  we  tried  to  get  out  of 
the  way,  and  in  trying  to  get  out  of  the  way  shot  among  us.  I  myself  got  six  balls 
in  me  at  that  time,  and  another  man,  named  Adam  Patterson,  got  shot.  He  and  I 
were  carried  home  in  a  wagon  together. 

Q.  Did  you  see  any  one  cut  or  struck? — A.  Yes;  I  saw  one  man  get  cut  with  a 
sword,  ami  two  got  struck  with  a  club. 

Q.  When  they  shot  at  you  what  did  they  say  ?— A.  When  they  shot  me  I  was  get- 
ing  away. 

Q.  What  did  they  say  when  they  came  up?— A.  As  they  came  up  they  said,  "You 
God  damned  son-of-a-bitch,"  and  struck  a  man  staudiug  behind  me  ;  at  that  time  I 
got  behind  a  tree ;  we,  the  Republican  party,  were  all  peaceable  and  quiet  at  the 
time. 

Q.  Were  you  all  quiet  through  the  day  ?— A.  Yes,  we  were  all  quiet  through  the 
day. 

Q.  Where  was  the  polls  kept  ?— A.  In  Mr.  Peeple's  store,  in  the  upper  story.  We 
had  to  go  up  staircase  from  outside. 


470  DIGEST    OF   ELECTION    CASES. 

Q.  Was  the  box  iuside  of  building  f — A.  The  box  was  right  at  the  door. 
He  further  testifies,  on  page  114  : 

Q.  How  long  have  you  lived  there  ? — A.  Was  bom  and  raised  there. 

Q.  Where  were  you  at  the  last  election  ?— A.  Was  at  the  Lawtouville  precinct. 

Q.  Was  it  a  quiet  election  that  day! — A.  No,  sir  ;  they  commenced  a  row  there  I 
suppose,  near  as  I  can  come  at  it,  about  8  o'clock  a.  m.  ;  they  kept  quiet  down  for 
awhile,  for  about  one  and  one-half  hour,  then  started  row  again  ;  then  things  went 
on  until  about  4  o'clock  p.  m.,  when  they  started  it  again.  They  threatened  to  fight 
the  Republican  party  for  voting;  they  rebuked  us  by  every  blasplieming  they  could 
think  of;  they  were  armed,  every  Democrat ;  most  that  I  seen  had  from  one  to  two 
pistols ;  then  in  the  evening,  at  4  o'clock,  they  rid  off  a  piece  and  came  back  and  rid 
right  in  among  the  Republican  party  with  swords  and  clubs  ;  then  we  tried  to  get  out 
of  the  way,  and  in  trying  to  get  out  of  the  way  shot  among  us.  I  myself  got  six 
balls  in  me  at  that  time,  and  another  man,  named  Adam  Patterson,  got  shot.  He  and 
I  were  carried  home  in  a  wagon  together. 

Erasuinus  Black  (p.  115)  testifies : 

Q.  State  then  what  occurred  there  to  prevent  it  from  being  peaceful. — A.  That 
morning  when  we  went  there  the  Democrats  started  a  row  to  keep  us  from  voting,  by 

threatening  and  cursing  us  for  d d  sons  of  bitches,  and  said   they  come  to  kill  us 

out  that  day,  and  that  they  were  going  to  fill  up  a  diich  with  us.  The  rows  con- 
tinued until  4  o'clock  that  evening  ;  and  then  the  shooting  began.  They  cut  us  with 
swords  and  beat  us  with  clubs.  One  cut  me  in  the  head  with  a  sword.  Then  we  ran 
and  they  shot  us  with  pistols  and  guns. 

Q.  Do  you  know  of  any  persons  being  shot  on  that  day  ? — A.  Yes.  Ben  Sheppard, 
Adam  Patterson,  Archey  Taylor. 

Q,  Do  you  know  the  name  of  that  supervisor  ? — A.  Edmund  Glover. 

Q.  Do  you  know  whether  or  not  ho  remained  in  the  room  all  daj',  from  6  o'clock  a. 
m.,  till  6  o'clock  p.  m.  T — A.  No ;  he  remained  there  till  the  row  commenced — 4  o'clock 
in  the  evening. 

Q.  Do  you  know  whether  or  not  he  returned  after  coming  out  of  the  room  at  4 
o'clock  I — A.  No.  I  saw  two  of  the  Democrats  leading  him  down.  The  Democrats 
were  dressed  in  red  shirts.     I  saw  them  leading  him  down  the  steps. 

Q.  How  do  you  know  that  he  did  not  return? — A.  After  they  led  him  down  the 
steps  he  went  across  the  field  and  fcook  to  the  swamps  to  save  his  life. 

Cross-examined : 

Q.  What  was  the  names  of  the  two  Democrats  that  were  leading  Glover  down  f — A. 
I  don't  know  them. 

Q.  Why  did  you  take  them  to  be  Democrats  f — A,  Because  they  were  white  men, 
and  dressed  in  red  shirts. 

Q.  Did  they  have  hold  of  Glover  T — A.  One  on  each  arm. 

Q.  Were  they  violent  towards  him  while  they  were  leading  ? — A.  Yes  ;  they  seemed 
to  be  forcing  him  down  the  steps. 

Q.  Did  you  see  any  of  them  strike  Glover  ? — A.  No. 

Q.  Why,  then,  did  you  say  that  he  ran  for  his  life  across  the  swamp  ? — A.  Because 
they  were  cursing  him  all  day,  and  if  he  had  not  run  they  would  have  shot  him  like 
they  did  us. 

Lucius  Barnes  (p.  119)  testifies  on  cross-examination  as  follows : 

Q.  Don't  youknoiy  Glover  got  scared  and  left  of  his  own  accord  ? — A.  I  don't  think 
Glover  left  of  his  own  accord,  I  know  he  would  not. 

Q.  Were  those  men  who  were  leading  him  down  using  any  violence  ? — A.  Did  not 
see  them  use  violence,  heard  them  tell  him  to  escape  for  his  lifp. 

"Z  Q.  State  what  occurred  at  the  Lawtouville  precinct  that  day. — A.  When  we  were 
going  to  the  poll  that  morning  they  commenced  cursing  us,  sons  of  bitches,  saying 
what  they  were  going  to  do  with  us  that  day,  and  after  that  the  Democrats  made  a 
line  to  be  divided ;  said  we  must  sta,y  on  one  side  and  the  Democrats  on  the  other, 
and  we  done  so  rather  than  have  any  fuss,  but  the  Democrats  would  keep  coming 
over  on  our  side  and  keep  cussing  us,  and  knocked  some  of  the  men,  and  told  us  if 
we  didn't  leave  there  they  were  going  to  play  hell  with  us  that  day  ;  so  we  never  left 
right  oflf,  but  made  up  a  little  fire  and  stood  around  there  until  about  4  o'clock,  and 
then,  rather  the  horse  cavalry,  went  up  the  road  and  came  back,  and  commenced 
knocking  and  shooting  and  cntting,  and  stabbed  me  in  the  temple  with  a  sword,  and 
then  wenad  to  leff.  They  told  us  if  we  did  not  leff  they  would  kill  us.  Adam  Pat- 
terson was  one  that  got  shot,  and  Archie  Taylor  and  Benjamin  Sheppard  got  shot. 

Albert  Hunter  (p.  122)  testifies  : 

Q.  Did  you  vote  ? — A.  Yes. 


SMALLS    VS.    TILLMAN.  471 

Q.  Tell  us  what  kind  of  a  row  it  was  that  was  raised  at  4  o'clock  in  the  afternoon  ? 

A.  We  were  sitting  around  a  fire.  Two  men  went  in  the  rear  of  ns  to  a  graveyard. 
About  fifty  men  went  down  the  road  on  horses.  Two  came  opposite  us  where  weVere 
sitting  at  the  fire.  The  two  that  went  to  the  graveyard  then  commenced  shooting. 
By  the  time  they  started  to  shoot  the  horsemen  came  back.  When  they  got  back  they 
charged  In  on  us,  and  tried  to  run  over  ns  with  their  horses,  knocking  us  with  clubs, 
chopping  us  with  swords,  until  they  got  us  scattered  from  around  the  trees.  When 
they  got  us  scattered  from  around  the  trees  and  we  commenced  to  run  they  com- 
menced to  shoot  us. 

Q.  How  many  men  got  shot? — A.  Three  that  I  know  of. 

Q.  Do  you  know  the  names  of  these  three  men  ? — A.  Ben  Sheppard,  Adam  Patter- 
son, and  Archer  Taylor. 

Q.  When  you  got  up  to  vote  did  you  see  any  Republicans  in  the  room  where  the 
voting  was  going  on  ? — A.  None  but  the  supervisor. 

Q.  Did  that  supervisor  remain  in  that  room  until  the  votes  were  counted  that  night  T — 
A.  No ;  he  was  there  until  the  fuss  commenced. 

Q.  Did  you  see  anything  of  him  during  this  fuss  ? — A.  T  saw  two  white  men  lead 
him  down  the  road. 

Q.  Have  you  seen  anything  of  him  since  ? — A.  No. 

Q.  Did  any  one  attempt  to  prevent  you  from  voting  when  you  went  up  to  vote  T — 
A.  No. 

Q.  Is  not  Lawtonville  a  large  Republican  settlement  ? — A.  It  is  a  large  Republican 
settlement. 

Q.  How  many  Republican  clubs  in  that  settlement  that  go  to  Lawtonville  to  vote? — 
A.  Two. 

Q.  Do  you  know  of  any  threats  or  any  shooting  of  guns  by  the  Democratic  party 
on  the  night  previous  to  the  election  f — A.  They  said  when  they  passed  my  house  that 

they  were  going  on  to  Lawtonville,  and  that  d d  Bepublioan a  could  oonie  on  there ; 

that  they  were  going  to  fill  up  a  ditch  unththem. 

Q.  Was  there  any  shooting  of  guns  f — A.  Yes ;  they  were  shooting  guns  and  pistols 
along  the  road  and  holloaing  all  the  time. 

From  the  testimony  at  the  pages  referred  to  it  will  be  seen  that  by 
reason  of  this  violence  a  large  number  of  Eepublicans  were  not  per- 
mitted to  vote  at  this  poll ;  that  the  poll  was  largely  Eepublican  had 
they  been  permitted  to  vote ;  that  the  Republicans  were  organized  in 
clubs  and  were  there  to  vote,  and  because  of  violence  and  intimidation, 
and  because  of  the  fact  that  the  supervisor  was  driven  away  and  pre- 
vented from  discharging  his  duties,  your  committee  are  of  opinion  that 
this  poll  should  be  rejected. 

VARNSVILLE. 

It  is  claimed  that  this  poll  is  not  included  in  the  notice  of  contest,  but 
it  seems  to  be  amply  covered  by  specifications  4th,  5th,  15th,  and  16th. 

This  box  contained  817  ballots,  which  was  an  excess  of  229  ballots 
over  the  number  of  names  on  the  poll-list.  There  were  drawn  out  160 
Eepublican  tickets  and  69  Democratic  tickets,  and  the  poll  is  stated  as 
459  Democratic  votes  and  129  Republican.  Over  80  Democratic  and 
two  Republican  tickets  were  found  to  contain  an  extra  ticket. 

There  is  no  means  of  ascertaining  the  true  vote  at  this  poll.  It  is  cer- 
tain that  the  ofi&cial  return  is  utterly  unreliable,  and  on  the  following 
testimony  your  committee  are  clearly  of  the  opinion  that  the  poll  should 
be  excluded. 

VARNSVILLE,   HAMPTON  COUNTY. 

S.  J.  Gantt,  supervisor  (p.  123),  testifies  : 

Q.  Did  you  remain  there  during  the  day  ? — A.  I  remained  there  during  the  day  till 
the  vote  was  done  counted, 

Q.  Do  you  know  the  number  of  votes  said  to  have  been  cast  there  that  day  ? — A. 
By  my  memory,  I  think  the  whole  number  of  votes  cast  was  500  and  odd. 

Q.  Do  you  remember  the  number  of  names  on  the  poll-list  kept  by  the  managers  T — 


472  DIGEST  OF.  ELECTION  CASES. 

A.  I  am  not  sure,  but  I  thiuk  the  number  of  names  on  the  poll-list  was  also  500 
and  odd. 

Q.  Was  there  any  more  ballots  cast  than  there  were  names  on  the  poll-list  ? — A. 
Yes,  sir. 

Q.  Do  you  remember  how  many  more  ballots  cast  than  there  were  names  on  the 
poll-list? — A.  There  were  either  two  hundred  and  twenty-nine  or  two  hundred  and  thirty 
more  ballots  than  there  were  names  on  the  poll- list. 

Q.  Did  you  see  the  ballots  that  were  in  excess  of  the  poll-list  drawn  out  ? — A.  Yes, 
sir ;  I  did. 

Q.  What  was  done  with  these  ballots  when  they  were  drawn  out  ? — A.  They  were 
thrown  in  the  fire,  but  I  saw  them  before  they  were  thrown  in  the  fire. 

Q.  Do  you  remember  the  number  of  ballots  that  were  drawn  out  from  the  excess 
that  were  Republican  ? — A.  I  remember  there  was  (160)  one  hundred  and  sixty  llejjub- 
lican  ballots  out  of  the  two  hundred  and  twenty-nine  or  two  hundred  and  thirty. 

Q.  Do  you  remember  the  number  of  Democratic  ballots  that  were  found  with  one  or 
more  folded  with  the  same  ? — A.  Eighty  or  eighty-eight. 

Q.  How  many  Republican  ballots  were  found  with  more  than  one  folded  within  the 
same  ? — A.  There  were  tico  only. 

Q.  Was  there  any  difl'erence  between  the  Democratic  and  the  Republican  ballots? — 
A.  There  was  a  right  smart  difference. 

Q.  Please  state  the  difference. — A.  The  color  of  the  Republican  ballot  was  white, 
and  the  Democrat  ballot  was  red.  The  Democratic  ballot  was  more _^"«er  and  thinner  ; 
they  could  be  distinguished  in  the  dark  in  the  night  by  the  difference. 

Cross-examination : 

Q.  Were  not  the  excess  of  ballots  from  box  without  seeing  them  1 — A.  The  one 
who  was  countiug  them,  taking  them  out,  never  looked  at  them. 

Q.  Were  not  these  ballots,  on  being  taken  out,  thrown  immediately  in  the  fire  ? — 
A.  They  were  thrown  in  the  fireplace,  and  one  of  the  managers  told  to  me  to  throw  them 
in  the  fire.  I  did  not  throw  them  in  one  by  one,  some  I  threw  in  singly  ;  others  were 
in  a  pile  ;  a  pile  here  and  a  pile  there. 

Q.  How,  then,  do  you  know  the  exact  number  of  Republican  ballots  that  were 
thrown  out  ? — A.  I  know,  as  I  counted  them  as  they  ivm-e  draivn  out. 

Jno.  A.  Brown  (p.  103)  testified  as  follows : 

Q.  Were  any  of  the  Democratic  or  Republican  voters  at  the  polls  armed? — A.  I  saw 
some  of  the  Democrats  armed  with  pistols,  but  don't  know  their  names. 

Q.  How  were  these  men  dressed? — A.  They  had  on  red  shirts. 

Q.  All  of  the  Democrats  have  on  red  shirts  or  part  of  them  ? — A.  Only  about  twenty- 
five  had  them  on,  I  thiuk. 

Q.  Were  any  threats  of  violence  made  by  these  men  that  were  armed  with  pistols 
and  had  on  red  shirts,  made  ? — A.  Yes,  sir  ;  by  one. 

Q.  If  you  know  the  man's  name  state  it,  and  what  he  did. — A,  I  do  not  personally 
know  his  name  ;  only  saw  him  walk  up  and  ask  this  young  man  if  he  intended  vot- 
ing, and  the  yoting  man  said  yes.  He  then  asked  him  what  way  he  intended  voting, 
as  he  was  objected  to  already.  The  man  said  he  intended  voting  the  Republican 
ticket;  then  this  Democrat  said,  "  If  you  intend  looting  for  Robert  Smalls  you  can't  vote 
here  to-day,  but  if  you  vote  for  Tillman  you  can  vote."  The  colored  man  told  him  before 
he  would  vote  for  Tillman  he  would  die  and  go  to  hell.  Then  the  row  started. 
Whilst  the  row  was  about  to  start,  the  Democratic  marshal  called  on  Mr.  Gantt,  the 
Republican  supervisor,  to  stop  the  row. 

Q.  Who  started  this  row  ? — A.  The  white  man.  The  white  man  said  he  belonged 
to  Captain  Lightsey's  company  ;  had  been  down  on  Monday  before  the  election  to 
kill  a  parcel  of  you  Almeda  Republicans,  and  to-day  they  intended  to  have  a  row  out 
of  us  and  finish  them. 

HAMPTON   COUNTY"— CORRECTED   VOTE   OF   CONTESTEE. 

The  vote  is  stated 2,590 

Deduct  Brunson 336 

Deduct  Earlv  Branch 316 

Deduct  Beech  Branch 120 

Deduct  Lawtonvtlle 340 

Deduct  Bamesville 4.59 

^  .  1,571 

1,  019 


Contestant 1,575 


SMALLS    VS.    TILLMAN.  473 

Deduct  Bruusou 19 

Deduct  Early  Branch 87 

Deduct  Beech  Branch 

Deduct  Lawtonville 174 

Deduct  Barnesville 129 

409 


1,166 


Small's  maiority 147 

BARNWELL  COUNTY. 

It  is  objected  on  behalf  of  the  contestee  that  there  is  no  notice  of 
contest  as  to  Barnwell  precinct,  in  the  county  of  Barnwell,  but  it  seemed 
to  be  amply  covered  by  the  7th,  15th,  and  16th  specifications  of  the  no- 
tice of  contest.  j^ 

It  is  immaterial,  however,  for  though  the  testimony  shows  that  a 
party  of  mounted  Democrats  were  shooting  aroui^pthe  polls  and  be- 
having in  such  a  manner  as  to  frighten  off  some  Republicans,  the  com- 
plaint as  to  this  box  is  not  proven. 

ALLENDALE. 

The  following  cross-examination  of  William  Green  (page  34)  is  a  fair 
statement  of  the  evidence  as  to  the  violence  at  Allendale  : 

Q.  When  did  you  make  your  first  attempt  to  vote  ? — A.  About  12  o'clock. 

Q.  Why  did  you  wait  till  then  T — A.  Mr.  Bivers  asked  us  to  wait  till  then,  so  the 
Democrats  could  voiejirst. 

Q.  Was  it  agreed  then  that  the  Democrats  should  vote  in  the  morning  and  the  Re- 
publicans in  the  afternoon  T — A.  Yes. 

Q.  How  many  Democrats  had  vot«d  till  12  o'clock  ? — A.  Don't  know ;  they  voted 
all  day.     Thej  jyromised  to  give  us  time  to  vote,  but  they  did  vot  do  it. 

Q.  Are  you  well  acquainted  with  the  Democrats  you  saw  with  pistols? — A.  I  was, 
with  two  of  them. 

Q.  Is  it  their  habit  to  carry  pistols  T — A.  Yes. 

Q.  Did  they  carry  clubs  or  walking-sticks  f— A.  The  clubs  were  too  large  for  tcalk- 
ing-sticks. 

Q.  ^Vhat  time  did  the  Republicans  leave  the  poll? — A.  About  G  p.  m. 

Q.  When  the  Republicans  came  up  to  vote  did  they  come  in  a  body  ? — A.  Yes ;  Mr. 
Rivers  called  them  up  and  said  that  there  was  room  for  them  to  vote,  but  the  Demo- 
crate  on  the  piazza  would  not  permit  them  to  enter. 

Q.  Did  the  Democrats  say  that  you  could  vote  after  12  o'clock? — ^A.  Mr,  Rivers  told 
we  to  icait  on  them  until  then. 

Q.  At  12  o^clock  did  any  Bejmblicans  push  their  way  in  f — A.  Yes ;  but  they  were 
knocked  down  and  beaten  by  the  Democrats. 

It  is  fully  corroborated  by  other  witnesses,  at  pages  31,  32,  33,  and 
62.  The  following  is  from  the  testimony  of  the  supervisor,  Lewis  Riv- 
ers (page  62  ) : 

Q.  WTiat  time  did  j-ou  get  to  the  poll  ?— A.  At  6  o'clock.     I  saw  the  box  opened. 

Q.  Where  was  the  poll  held,  and  how  was  it  situated  ? — A.  It  was  in  an  old  store 
on  the  counter,  near  the  rear  door,  the  voters  going  in  and  out  the  front ;  the  box 
was  about  thirty  or  forty  feet  from  the  front  door. 

Q.  Did  the  votere  have  free  access  to  the  poll  ? — A.  The  Democratic  party  kept  a 
crowd  at  the  door,  obstructing  the  front  door,  and  compelled  colored  men  to  show 
their  tickets,  and  when  it  was  found  they  had  Republican  tickets  they  would  close  the 
door  and  prevent  them  from  entering.  • 

Q.  Did  you  keep  a  poll-list  ?— A.  I  started  to  keep  one,  but  saw  that  it  was  impossi- 
ble to  keep  one  correctly,  antl  stopped  about  1  p.  m.  . 

Q.  Did  the  managers  give  you  every  facility  to  discharge  your  duty  ? — A.  They  did. 
The  reason  I  was  unable  to  keep  a  correct  poll-list  was  because  the  Republicans  were 
prevented  from  coming  into  the  poll  to  vote,  and  I  was  compelled  to  leave  the  box  in 
order  to  try  and  make  a  way  for  the  Republicans  to  get  in.  I  could  not  attend  to  this 
and  keep  a  poll-list  at  the  same  time.     When  I  went  to  the  door  and  asked  that  the 


474  DIGEST    OF    ELECTION    CASES. 

way  be  cleared  it  was  done,  but  as  soon  as  I  returned  to  the  box,  the  passage  was 
closed  again  ;  it  was  the  same  as  before.  This  continued  until  about  1  o'clock,  when 
the  Republicans  went  away  towards  Barker's  Mill  precinct,  as  they  could  not  get 
into  the  poll  at  Allendale.  They  returned  to  Allendale  about  3  or  4  o'clock  and  said 
that  they  had  been  to  Barker's  Mill  and  could  not  vote  there. 

The  same  process  of  obstructing  the  poll  was  continued  all  day. 

Q.  How  many  Republicans  voted  at  Allendale  that  day  ? — A.  Thirty-six  Republican 
votes  were  counted  and  over  seven  hundred  Democratic. 

Q.  Do  these  figures  represent  one  vote  for  each  voter  at  that  precinct  ? — A.  I  don't 
think  they  did.  I  noticed,  in  counting  the  votes,  several  ballots  were  folded  together. 
I  don't  think  that  700  Democrats  voted  there. 

Q.  Were  you  asked  to  sign  a  poll-list  and  return  that  night  T — A.  I  was,  by  the 
Democrats,  but  refused.  Quite  a  number  of  Democrats  came  to  my  house,  about  1 
o'clock  that  night,  and  demanded  that  I  should  get  up  and  sign  the  list.  I  refused. 
They  cursed  and  threatened  to  break  down  my  door.  I  still  refused.  They  shot 
around  the  house,  alarming  my  family.  The  next  night  they  did  the  same  thing.  I 
concluded  it  best  for  my  safety  to  leave  and  stay  away  for  a  while.  I  remained  away 
for  several  weeks. 

Q.  How  many  Republicans  were  prevented  from  voting  there  T — A.  Between  three 
and  four  hundred,  who  would  have  voted  for  Robert  Smalls. 

Charles  Blake  tlN;lfies  (p.  31)  as  follows: 

Q.  Did  you  vote? — A.  No.  I  went  with  the  intention  to  vote  the  Republican  ticket 
with  Robert  Smalls  on  it  for  Congress.  When  I  got  to  the  door  the  place  was  crowded 
with  Democrats  :  they  asked  me  how  I  wanted  to  vote  ;  I  told  them  the  Republican 
ticket;  they  shoved  us  off  the  platform, and  said,  "You  can't  vote  that  ticket  here 
to-day." 

Q.  Did  you  vote  at  all  that  day  f — A.  I  did  not. 

Q.  Who  shoved  you  off  the  platform  T — A.  The  crowd  of  Democrats  that  were  on 
the  platform. 

Q.  Were  you  unable  to  get  to  the  ballot-box  ? — A.  I  was. 

Q.  Were  there  any  other  Republicans  prevented  from  voting  ? — A.  There  were  two 
hundred  and  forty-six  in  my  club,  and  about  two  hundred  and  fifty  more,  who  were 
prevented  from  voting  there  that  day. 

Q.  Did  the  managers  open  the  ballot-box  ? — A.  I  do  not  know. 

Q.  Where  was  the  poll  held  ? — A.  In  Fitt's  old  store  ;  inside. 

Q.  Did  you  at  any  time  see  the  ballot-box  ? — A.  No  ;  I  could  not  get  close  enough  to 
see  it. 

Q.  Were  there  many  Democrats  present  ? — A.  Yes. 

Q.  Were  they  armed? — A.  I  saw  a  few  arms. 

Cross-examined  by  Mr.  Holmes  : 

Q.  How  many  persons  went  with  you  to  Allendale  ? — A.  Two  hundred  and  forty-six. 

Q.  How  did  you  go  ? — A.  We  just  walked  along  together. 

Q.  Were  they  Republicans  or  Democrats  f — A.  Republicans. 

Q.  Were  any  of  them  armed  with  guns,  pistols,  or  clubs  I — A.  No. 

Q.  How  many  persons  were  there  when  you  reached  the  p»llf — A.  A  large  number. 

Q.  Were  they  Democrats  or  Republicans  ? — A.  Both  ;  but  mostly  Republicans. 

Q.  Were  any  persons  on  the  piazza  of  the  store  where  the  box  was  at  that  time  ? — 
A.  Yes ;  the  piazza  was  filled  with  Democrats. 

Q.  Were  any  of  the  Republicans  in  uniform  ? — A.  No  ;  not  one. 

Q.  How  many  Republicans  were  thrown  off  the  platform  by  Democrats  ? — A.  A  good 
many.    I  saw  eight. 

Q.  Were  they  thrown  off  because  they  were  Republicans  ? — A.  Yes ;  the  Democrats, 
they  did  it  for  that  reason. 

Q.  How  many  Democrats  were  thrown  off  by  Republicans  ? — A.  Not  one. 

Q.  How  large  was  this  piazza? — A.  About  15  by  6  or  8  feet  wide. 

Q.  Where  were  the  Democrats  stationed  who  keptthe  Republicans  back  ? — A.  Around 
the  piazza. 

Q.  Did  any  Democrat  threaten  to  injure  you  ? — A.  One  Democrat  drew  his  pistol  on 
a  crowd  of  us. 

Q.  How  many  colored  Democrats  are  there  in  Allendale  T — A.  Only  one  that  I  know 
of. 

Jeffrey  Frost  testifies  (p.  33)  a«  follows  : 

Q.  Did  you  vote? — A.  No;  I  could  not  get  to  the  poll.  I  went  to  the  poll  two  or 
three  times,  and  the  Democrats  asked  me  how  I  intended  to  vote.  I  told  them  I  wanted 
to  vote  the  Republican  ticket,  and  they  said  that  I  could  not  vote  that  ticket  there 
that  day,  and  shoved  me  off  the  piazza. 


SMALLS    VS.    TILLMAN.  475 

Q.  How  many  other  Republicans  were  prevented  from  voting  in  the  same  way  ? — 
A.  About  three  hundred  that  I  know  of. 

A.  Were  there  many  Democrats  on  and  around  the  piazza ? — A.  Yes;  a  crowd  of 
them. 

Q.  If  the  Republicans  had  persisted  in  trying  to  vote  do  you  think  there  would  have 
been  trouble  ? — A.  Yes. 

Cross-examination  by  Mr.  Holmes: 

Q.  Why  do  you  think  there  would  have  been  trouble  ? — A.  Because  those  who  did 
go  through  the  door  the  Democrats  spat  upou  and  kicked  them. 

Charles  Gardener  (p.  33)  testifies  as  follows: 

Q.  Did  you  vote? — A.  I  tried  to  vote,  and  the  Democrats  asked  me  what  ticket  I 
wanted  to  vote,  and  when  I  told  them  I  was  going  to  vote  for  Garfield  and  Smalls 
they  said  I  could  not  vote  that  ticket.  They  tried  to  get  me  to  give  them  my  ticket. 
I  would  not,  and  they  shoved  me  off  the  platform. 

Q.  About  how  many  were  with  you  wanting  to  vote  same  ticket  ? — A.  I  tried  to  vote 
twice ;  about  two  hundred  and  fifty. 

William  Green  (p.  34)  testifies  as  follows : 

Q.  Did  you  go  to  Allendale  on  the  day  of  the  election  to  vote  ? — A.  I  did,  but  did 
not  vote,  because  the  Democrats  stood  in  the  piazza  and  would  not  let  us  in.  I  dis- 
tributed about  300  tickets,  and  went  on  the  piazza  to  vote.  I  was  thrown  off,  and 
some  who  went  with  mo  were  beaten  and  thrown  off.  I  tried  about  half  a  dozen  times 
to  vote  and  was  violently  ejected  each  time  by  Democrats  who  had  pistols  and  clubs 
in  their  hands. 

Q.  Did  you  see  any  Democrats  with  pistols  and  clubs  f — A.  I  saw  about  half  a  dozen 
at  the  door  with  pistols.     I  know  the  names  of  three  of  them. 

Cross-examined  by  Mr.  Holmes  : 

Q.  When  did  you  make  your  first  attempt  to  vote  ? — ^A.  About  12  o'olock. 

Q.  Why  did  you  wait  till  then  t — ^A.  Mr.  Bivera  asked  us  to  wait  till  then  so  the  Dem- 
ocrats could  vote  first. 

Q.  Was  it  agreed  then  that  the  Democrats  should  vote  in  the  morning  and  the  Re- 
publicans in  the  afternoon? — A.  Yes. 

Q.  How  mai;y  Democrats  had  voted  till  12  o'clock  ? — A.  Don't  know ;  they  voted  all 
day.     They  promised  to  give  us  time  to  vote,  but  they  did  not  do  it. 

Q.  Are  you  well  acquainted  with  the  Democrats  you  saw  with  pistols? — A.  I  was 
with  two  of  them. 

Q.  Is  it  their  habit  to  carry  pistols  ? — A.  Yes. 

Q.  Did  they  carry  clubs  or  walking  sticks  f — A.  The  clubs  were  too  large  for  icalking- 
sticks. 

Q.  What  time  did  the  Republicans  leave  the  poll? — A.  About  6  p.  m. 

Q.  When  the  Republicans  came  up  to  vote  did  they  come  in  a  body  ? — ^A.  Yes;  Mr. 
Rivers  called  them  up,  and  said  that  there  was  room  for  them  to  vote  ;  but  the  Dem- 
ocrats on  the  piazza  would  not  permit  them  to  enter. 

Q.  Did  the  Democrats  say  that  j'ou  could  vote  after  12  o'clock? — A.  Mr.  Eivers  told 
us  to  wail  on  them  until  then. 

Q.  At  12  o'clock  did  any  Bepublicans  push  their  way  inf — A.  Yes;  but  they  were 
knocked  doivn  and  beaten  by  the  Democrats. 

Upon  this  testimony  this  poll  must  be  rejected. 

In  this  county  the  governor  appointed  Gilbert  Hogg  as  a  Eepublican 
upon  the  board  of  election  commissioners,  and  he  testifies  at  page  64  that 
the  first  notice  of  a  meeting  which  he  received  was  to  meet  on  the  "day 
of  election  at  Barnwell." 

Then,  of  course,  the  other  two  members  of  the  board  had  appointed 
all  of  the  managers,  and  every  manager  and  clerk  was  of  the  contestee's 
political  party,  and  the  testimony  as  to  their  conduct  indicates  that 
many  of  them  were  not  only  partisans  but  very  unscrupulous  ones.  On 
page  05  Hogg  testifies : 

Q.  Did  the  Republicans  ask  for  the  appointment  of  managers  to  represent  them  at 
any  of  the  polls  in  this  county  ? — A.  Mr.  Xix.  the  Republican  county  chairman,  asked 
for  the  appointment  of  one  manager  at  each  poll,  and  gave  me  a  list  of  names  who 
were  recommended.     None  of  them  were  appointed. 

Q.  You  met  with  the  commissioners  as  a  board  of  canvassers  after  the  election  T — ^A.. 
Yes. 


476  DIGEST    OF    ELECTION    CASES. 

Q.  Was  there  any  couversatioii  in  the  board  about  the  number  of  votes  that  had 
been  cast  in  Barnwell  Connty  ? — A.  There  was.  It  was  said  by  the  commissioners  tiiat 
there  were  more  votes  cast  than  there  were  voters  in  the  connty.  The  clerk  wanted 
to  know  what  was  to  be  done  about  it.  I  asked  what  was  to  be  done  about  it,  and  it 
was  decided  that  we  should  count  the  votes  as  returned,  and  that  it  was  not  our  fault 
that  there  was  an  excess.  There  were  some  mistakes  in  the  poll-list,  and  the  com- 
missioners said  that  they  could  not  fix  it.  I  don't  remember  what  was  the  excess  of 
the  votes  of  the  county,  but  it  was  two  thousand  or  more. 

The  votes  claimed  for  the  contestee  in  this  county  are  5,422,  yet  by 
the  census  taken  the  same  year  there  are  only  3,131  white  males  21 
years  old  in  the  county,  so  that  to  have  gotten  this  vote  the  contestee 
must  have  received  the  vote  of  every  white  male  over  21  years  of  age 
in  the  county,  and  of  2,391  colored  voters  in  addition.  Besides  the 
very  great  improbability  that  a  very  considerable  number  of  colored 
people  voted  for  the  contestee  is  the  fact  that  the  whole  vote  as  certi- 
fied is  7,867,  and  it  is  proven  that  1,148  Kepublicans  were  prevented 
from  voting,  making  9,015,  and  the  census  shows  only  a  total  of  males 
over  21  years  of  age  of  7,906. 

The  spirit  of  the  election  is  illustrated  by  a  few  extracts  of  the  testi- 
mony.   At  page  21  is  the  following  from  A.  J.  Singleton  : 

Q.  Were  these  men  who  were  prevented  from  votinj^  Democrats  or  Republicans  ? — 
A.  All  who  I  saw  rejected  attempted  to  vote  the  Rei)ublican  ticket,  with  Smalls  on  it 
for  Congress. 

Q.  Do  you  know  of  any  violence  or  intimidation  at  or  before  the  election  against 
the  Republicans! — A.  There  Avas  ridiug  up  and  down  in  the  neighborhood  by  the 
Democrats  several  nights  before  the  election,  beginning  on  Thursday,  continuing 
Friday  and  Saturday  night,  who  were  shooting,  cursing,  and  making  a  great  deal  of 
noise. 

William  Fogler  (p.  22)  testifies : 

Q.  Tell  us  about  the  entrance  to  the  poll. — A.  A  railing  was  erected  in  front  of  the 
door  about  10  feet  high.  The  guards  kept  the  people  outside  of  that  rail,  the  object 
being  to  keep  the  voters  out — Republican  voters. 

Q.  Did  the  managers  or  clerk  have  on  red  shirts? — A.  They  all  had  on  red  shirts. 

Q.  Was  there  any  intimidation  or  violence  before  the  election  ? — A.  There  was. 
The  Democrats  was  riding  and  shooting  from  about  three  nights  before  the  election 
until  the  election. 

C.  H.  Hopkins  (p.  24)  testifies : 

A.  Yes;  it  was  general.  Saturday  before  the  election  they  came  to  my  house, 
and  discharged  their  guns  and  pistols.  This  was  about  3  a.  m.  They  went  through 
that  section  shooting,  &c.,  three  nights  before  the  election  ;  they  went  to  Alex.  Gill's 
house,  who  was  vice-president  of  our  club,  and  left  a  coffin  cut  from  a  paste-board 
box,  and  wrote  on  it :  "Alex.  Gill :  If  you  don't  quit  your  ways  and  join  the  Democ- 
racy you  shall  be  in  the  clay  in  a  few  days." 

Q.  Why  did  they  go  to  your  house  ? — A.  I  am  the  president  of  the  club  and  pre- 
cinct chairman. 

Q.  If  the  vote  had  been  counted  as  cast  would  that  poll  have  gone  Republican  ? — 
A.  It  would  have  gone  Republican.  C.  F.  Calhoun,  one  of  the  Democratic  managers, 
said  to  me  dnring  the  day  of  election  that  "you  are  giving  us  the  devil  in  voting, 
but  we  will  give  you  the  devil  in  the  count." 

Silas  Caves  testifies  (p.  20)  as  follows : 

Q.  Did  yon  vote  ? — A.  No. 

Q.  Who' did  you  intend  to  vote  for  for  Congress  ? — A.  General  Robert  Smalls. 

Q.  Why  did  you  not  vote  ? — A.  There  were  so  many  Democrats  present,  uniformed 
in  red  shirts  and  armed  with  pistols  and  sticks,  and  acting  in  such  a  threatening 
manner,  and  crowded  the  entrance  to  the  polling  places  that  it  was  impossible  for  us 
to  vote.  I  went  away  with  the  crowd  of  Republicans,  numbering  about  three  hun- 
dred and  fifty,  who  like  myself  were  unable,  through  threats  and  fear,  to  vote  the 
Republican  ticket. 

Q.  Did  any  Democrats  threaten  the  voters  at  this  poll  ? — A.  I  heard  quite  a  number 
who  were  on  the  steps  blocking  the  way  to  the  polls  say,  "By  God,  you  sha'u't  vote 
unless  you  vote  the  Democratic  ticket,  as  we  are  voting."  Some  of  the  red-shirts 
were  preventing  the  Republicans  from  coming  within  the  yard  of  the  house  in  which 
the  poll  was,  saying  that  "  they'd  be  d d  if  niggers  should  vote  there." 


SMALLS    VS.    TILLMAN.  477 

Q.  Do  yon  kuow  of  any  iutimidatiou  before  the  election? — A.  It  was  a  common 
tliinv;,  a  short  time  before  the  election,  for  the  Democrats  to  ride  up  and  down  at 
night,  making  the  night  hideous  with  noises  and  curses  to  intimidate  the  Republicans 
of  the  county.  During  the  week  prior  to  the  election  they  visited  my  house  twice. 
The  tirst  time  I  was  not  at  home.  The  second  time  they  came  I  left  my  house  and 
took  to  the  woods,  fearing  they  would  kill  me  because  of  my  politics.  They  fired 
pis'ols  nightly  for  the  purpose  of  striking  fear  in  the  hearts  of  the  colored  people. 
All  the  Republicans  were  terrorized,  they  never  having  heard  or  seen  such  things 
before. 

The  vote  of  Barnwell  is  stated : 

Contestee.  Contestant. 

5,  422  2, 445 

Deduct  Allendale 700  36 

D»'duct  votes  illegally  drawn,  Ferril's  Store 22 

4,  700  2, 409 

Add  vote  not  counted,  FtTril's  Store 22 


2,431 

These  are  the  only  changes  in  the  official  statement  of  the  vote  in  this 
county  which  your  committee  recommend,  but  they  desire  to  call  es- 
pecial attention  to  the  following  extracts  from  the  testimony  for  the 
purpose  of  showing  the  spirit  and  mode  of  conducting  the  election  in 
this  county : 

Frederick  Kix,  jr.,  at  p.  715,  testifies : 

Q.  Was  it  not  understood  and  agreed  upon  just  before  the  last  general  election,  be- 
tween yourself,  as  Republican  county  chairman,  and  E.  J.  Snetter,  and  other  Repub- 
lican supervisors  of  election,  that  they  should  leave  the  ballot-boxes  at  Elko,  Gra- 
ham's, Barker's  Mill,  and  Allendale  before  the  voting  and  the  counting  of  the  votes 
Avas  completed,  for  the  purpose  and  with  the  understood  design  of  contesting  the  elec- 
tiou  of  George  D.  Tillman  to  the  House  of  Representatives  from  the  fifth  Congressional 
district  of  the  State? 

(Contestant,  notwithstanding  the  question  being  irrelevant  at  this  stage  of  proced- 
ure, consents  that  the  question  should  be  asked  and  answered.) 

A.  It  never  was,  and  I  never  heard  of  it  before.  I  did  not  expect  the  supervisors 
to  remain  at  those  and  other  precincts,  from  what  was  told  to  me  by  various  Demo- 
cratic precinct  chairmen,  one  of  whom  is  sifting  down  by  me,  that  the  Republican  can- 
didate for  Congress  would  be  counted  out. 

As  to  Millett's,  Thomas  Roberts  testifies  (p.  61) : 

Q.  In  what  polling  precinct  do  you  live  ? — A.  Millett. 

Q.  Did  you  go  to  Millett  at  the  last  general  election  to  vote  ? — A.  No  :  I  wanted  to 
go  there,  l)ut  it  was  rumored  that  if  the  Republicans  went  there  to  vote  they  would 
be  killed,  and  I  started  to  Red  Oak ;  but  about  half  a  mile  from  the  poll  a  party  of  men 
met  us  in  the  road  and  fired  over  our  heads,  and  the  Republicans  scattered.  About  a 
mile  from  there,  on  another  road,  another  party  of  Democrats  met  us  and  fired  off  their 
pistols.  We  became  alarmed  and  ran  away  home.  I  did  not  vote  that  day,  but  I  in- 
teuded  to  vote  the  straight  Republican  ticket.  I  slept  out  in  the  woods  for  nearly  a 
tceek  for  fear  of  being  killed.  The  colored  people  were  very  much  alarmed  in  that 
neighborhood.  There  were  many  others  in  the  party  when  the  firing  took  place,  and 
trere  a/raid  to  leave  home  a?id  go  to  the  poll. 

John  Woodward  testifies  (p.  15)  as  follows  : 

Q.  What  is  the  nighest  polling  place  to  where  you  livef — A.  Millett. 

Q.  Did  you  vote  there? — A.  I  was  afraid  to  go  there. 

Q.  Why  ? — A.  Because  of  threats  to  kill  any  Republican  who  went  there  to  vote. 
I  started  to  Red  Oak,  and  a  half  mile  from  the  poll  were  met  by  a  party  (16)  of 
mounted  Democrats,  who  fired  their  pistols  over  us,  and  our  party  broke  and  ran  away. 
I  went  home,  but  slept  in  the  woods  for  three  or  four  nights.  We  had  not  got  over  the 
EUenton  riot,  and  could  not  stand  to  see  them  tote  "  them  guns."  The  colored  people 
were  much  scared  in  the  neighborhood.  I  was  going  to  vote  the  straight  Republican 
ticket.  I  know  of  about  eight  Republicans  who  ran  off  and  did  not  vote.  They 
would  have  voted  the  Republican  ticket. 
Cross-examined  by  Mr.  Holmbs: 

Q.  By  whom  were  these  reports  that  the  Republicans  would  be  killed  if  they  voted 
the  Republicau  ticket  at  Millett's? — A.  By  the  Democrats. 


478  DIGEST  OF  ELECTION  CASES. 

Q.  How  do  you  know  that  it  was  started  by  them  ? — A.  I  know  it  because  they  put  out 
the  report. 

Calvin  Brown  (p.  39)  testifies  as  to  "NYilliston : 

Q.  Who  was  the  supervisor  at  this  poll  ? — A.  A.  W.  Gantt. 

Q.  Did  he  stay  there  all  day  ? — A.  No ;  he  did  not. 

Q.  Was  he  there  when  the  vote  was  counted  ? — A.  Yes. 

Q.  Do  you  know  why  he  left? — A.  Mr.  John  D.  Brown,  a  marshal,  ordered  him  out. 
He  objected  to  any  supervisor  being  around  the  box.  It  was  his  house  where  the  poll  was 
held. 

Q.  Did  you  hear  him  order  the  supervisors? — A.  Yes;  he  told  me  that  he  had  re- 
ceived a  dispatch  from  Judge  Bryan  that  no  supervisor  had  a  right  to  be  around  the 
poll. 

Q.  Is  Brown  the  sergeant-at-arms  of  the  house  of  representatives  T — A.  Yes. 

Q.  Was  Brown  claiming  to  be  and  acting  as  an  officer  of  any  kind  that  day  ? — A. 
Yes. 

Q.  Did  he  have  on  a  badge  ? — A.  Yes. 

Q.  When  Brown  told  them  to  go  out,  did  he  request  them  to  go  oiit? — A.  He  said, 
"  I  will  allow  no  supervisor  in  my  house ; "  that  he  had  received  a  dispatch  from  Judge 
Bryan  not  to  allow  any  supervisor  inside  the  poll. 

G.  W.  Gantt,  supervisor  (p.  57),  as  follows : 

Q.  Were  you  at  Williston  on  the  day  of  the  election  as  supervisor  ? — A.  Yes. 

Q.  Did  you  keep  a  poll-list  ? — A.  No ;  I  started  to  do  so,  but  was  arrested  by  J.  D. 
Brown,  who  claimed  to  be  an  officer,  with  a  badge  on,  and  put  me  out  of  the  house. 

Q.  Was  it  possible  for  you  to  keep  any  check  on  the  managers  without  keeping  a 
poll-list  ?— A.  No. 

E.  J.  Snetten,  United  States  supervisor  at  Elko  (page  59)': 

Q.  Was  there  any  railing  or  anything  to  keep  people  out  ? — A.  There  was  a  pen  in 
front  of  the  door  4  by  6  feet,  giving  space  enough  for  one  man  to  enter  at  a  time. 

Q.  Were  the  managers  Eepublicans  ? — A.  No ;  they  were  all  Democrats. 

Q.  Did  you  remain  at  your  post  all  day  ?-^A.  I  did  not ;  at  the  opening  of  the  poll 
I  requested  to  enter  the  house  where  the  poll  was,  but  was  refused  admission  by  one 
of  the  managers,  who  said  that  the  managers  were  all  honest,  and  said  that  I  must  go 
into  that  pen.  I  went  into  the  pen  and  started  to  keep  a  poll-list.  Soon  after  some 
came  up  to  vote  and  whispered  their  names.  When  I  asked  them  for  their  names  the 
managers  told  them  not  to  give  their  names,  as  I  had  no  right  to  take  them.  This 
happened  a  great  many  times,  and  I  was  unable  to  get  the  names  of  voters ;  there 
were  Democratic  voters ;  there  was  a  great  deal  of  cursing  and  loud  noise  by  the 
Democrats ;  one  Dimond  made  many  threats  and  cursed  me,  saying  that  some  boys 
would  be  up  here  to-day  to  see  into  those  big  ej^es.  Many  of  them  were  under  the 
influence  of  whisky  ;  there  was  a  man  standing  beside  me  who  brandished  a  large  re- 
volver, and  I  thought  that  he  was  going  to  shoot  me ;  I  heard  some  yelling,  and  a 
crowd  of  about  25  men  rode  up  with  red  shirts  on,  and  this  man  said,  "  Here  are  the 
boys  that  will  see  in  Snetten's  big  eyes;  "  they  dismounted  and  crowded  the  poll,  and 
the  pen  in  which  I  was  was  torn  apart,  and,  fearing  personal  injury,  I  took  my  things 
and  left  the  poll. 

Q.  Were  you  afraid  to  stay  there  ? — ^A.  I  really  was ;  it  would  not  have  been  safe. 

Q.  What  time  was  this? — A.  About  8.45  a.  m. 

Q.  How  many  Eepublicans  had  voted  at  that  time? — A.  Not  more  than  three,  I 
think. 

Q.  How  many  Democrats  ? — A.  About  forty  or  fifty. 

Q.  Why  more  Democrats  than  Republicans  ? — A.  The  Democrats  were  making  so 
much  noise  that  the  Republicans  were  afraid  to  go  up  to  the  poll  to  vote. 

Allen  P.  Patterson  (p.  45) : 

Q.  Did  you  stay  there  all  day  ? — A.  No. 

Q.  Why  did  you  leave  ? — A.  A  company  of  Democrats  came  from  towards  Black- 
ville :  they  dismounted  and  crowded  the  poll,  threatening  the  Republican  supervisor  ; 
they  tore  down  a  pen  in  front  of  the  poll ;  they  were  drunk,  and  created  a  great  alarm 
among  the  Republicans,  causing  them  to  leave  the  poll  for  fear  of  being  hurt. 

Q.  Did  you  hear  any  of  the  managers  say  anything  about  the  voting  ? — A.  Mr. 

Nixon,  the  chairman  of  the  board  of  managers,  said  that  "  d d  if  the  Republicans 

would  get  many  votes  there  that  day." 

Daniel  Patterson  (p.  40) : 

Q.  Were  the  Republicans  afraid  because  of  the  conduct  of  the  Democrats  to  stay 
there  that  day? — A.  Tliey  said  they  were.     I  was. 
Q.  Did  you  hear  either  of  the  managers  say  how  many  Republicans  would  be  polled 


SMALLS    VS.    TILLMAN.  ^        479 

there  that  day  ? — A.  I  heard  Mr.  Nixon  say  that  there  would  be  d d  few  Republican 

votes  polled  there  that  day. 

O.  C.  Eobinsoii,  United  States  supervisor  at  Ferrill's  Store,  testifies 
(p.  38)  : 

Q.  How  was  this  excess  drawn  out  ? — A.  The  manager  looked  in  the  box  and  drew 
out  the  excess. 

Q.  The  manager  was  not  blindfolded? — A.  He  was  not. 

Q.  How  many  Bepublican  votes  were  drawn  out  ? — A.  Twenty-two. 

Q.  Were  there  any  ballots  found  in  the  box  inclosed  in  other  ballots  ? — A.  There 
were  18. 

Q.  What  was  the  character  of  these  ballots  ?— A.  One  Bepublican  and  V7  Democratic, 

Q.  Were  the  managers  Republicans  or  Democrats  ? — A.  All  Democt'ats. 

Q.  Did  you  see  each  Republican  cast  his  vote  there  that  day  ? — A.  Yes. 

Q.  Can  you  tell  how  this  excess  was  created  ? — A.  Yes ;  the  managers  said  that  the 
ballots  found  folded  together  were  regularljj  voted,  and  unfolded  and  counted  them  in  the 
total  number  of  votes  cast,  and  when  the  excess  was  found  to  be  22  the  managers 
drew  out  22  Bepublican  ballots. 

M.  G.  Young  (p.  43)  testifies  as  follows  : 

Q.  Were  you  present  when  the  polls  closed,  and  did  you  see  the  managers  count 
the  votes  ? — A.  Yes. 

Q.  Do  you  know  how  many  ballots  came  out  of  the  box  with  more  than  one  in  them  T 
— A.  Seventeen. 

Q.  What  kind  of  ballots  were  they  ? — A.  Democratic. 

Q.  Were  there  any  Republican  ballots  so  folded  ? — A.   Yes,  one. 

Q.  Did  the  managers  compare  the  number  of  ballots  in  the  box  before  they  ascer- 
tained for  whom  they  were  cast  ? — A.  They  opened  them  all  and  counted  them  all^ 
and  then  compared  them  with  the  names  on  the  poll-list ;  then  they  destroyed  the  ex- 
cess of  22  ballots. 

Q.  How  were  the  22  ballots  drawn  out  ? — A.  One  of  the  managers  looked  in  the 
box,  picked  out  22  Bepublican  ballots  and  destroyed  them. 

Q.  Whose  name  did  the  Republican  ticket  have  on  it  for  Congress? — A.  Robert 
Smalls's. 

These  facts  are  admitted  with  a  boastful  frankness  on  page  83  of  the  • 
contestee's  brief. 

These  22  ballots  illegally  taken  from  the  contestant  should  be  re- 
stored, and  the  same  number  of  fraudulent  ballots  illegally  counted  for 
the  contestee  should  be  deducted. 

BARKER  MILL. 

James  McMillen  testifies  (p.  18)  as  follows  : 

Q.  Did  you  go  to  Barker's  Mill  on  the  day  of  election  for  the  purpose  of  voting,  and 
did  you  vote  ? — A.  I  went  to  the  poll  at  G  a.  m.,  but  the  poll  did  not  open  until  8.30  a. 
m.  ;  remained  until  about  4  p.  m. ;  being  unable  to  vote,  as  the  Democrats  in  uniform^ 
armed  with  clubs  and  pistols,  bai'red  the  way  and  prevented  the  Republicans  from 
voting,  we  all  went  home  and  did  not  vote  at  all.  Dave  Norris  and  Ben  Myric,  active 
Democrats,  told  the  people  that  if  they  would  vote  the  Democratic  ticket  they  would 
be  permitted  to  do  so,  but  they  would  not  be  allowed  to  vote  the  Republican  ticket. 
The  Republicans,  being  afraid  of  violence  if  they  persisted  in  voting  as  they  desired, 
finally  went  home  without  voting. 

C.  F.  Cave  (p.  18)  testifies: 

Q.  Do  you  know  of  any  intimidation  or  violence  during  or  preceding  the  election: 
by  Democrats  ?— A.  I  do.  On  the  Thursday  night  before  the  election  a  mounted  party 
came  to  my  house  and  attempted  to  call  me  out,  but  I  refused  to  go.  They  said  that 
if  they  heard  any  more  threats  they  would  come  back  again,  but  I  must  look  out  for 
Tuesday  anyhow.  I  hoard  a  great  many  parties  riding  around  the  county  threatening, 
the  people. 

Felix  Hayes  testifies  (p.  19)  as  follows : 

Q.  Did  you  vote? — A.  I  did  not. 

Q.  Why? — A.  I  went  to  the  poll  about  6  a.  m.,  and  found  that  no  poll  was  opened. 
The  poll  opened  about  half  past  eight,  but  I  was  prevented  from  voting  by  the  Dem- 
ocrats, who  were  armed  with  pistols  and  clubs,  wearing  red  shirts,  and  threatening- 


480  DIGEST    OF   ELECTION    CASES, 

• 

th«  Republicans.     I  would  hare  voted  for  Robert  Smalls  for  Congress  if  I  had  been 
permitted  to  vote. 

Q.  Were  many  Republicaus  prevented  from  voting  that  day  f — A.  About  three  hun- 
dred aud  fifty. 

Kobert  Bradley  testified  (p.  19)  as  follows: 

Q.  Did  you  go  to  Barker's  Mill  on  the  day  of  election  to  vote,  and  if  yon  did  not 
vote,  state  why! — A.  I  went  to  the  poll  about  6  a.  m.,  and  staid  until  4  p.  m.  I  did 
not  vote,  as  a  large  number  of  Democrats  were  present  in  uniform,  armed  with  pistols 
and  clubs,  and  who  prevented  any  one  from  voting  the  Republican  ticket;  had  I  been 
permitted  to  vote  I  would  have  voted  for  Robert  Smalls  for  Congress,  as  would  the 
other  Republicans  who  were  prevented  from  voting,  numbering  about  three  hundred 
and  fifty. 

It  will  be  borne  in  mind  that  this  is  one  of  the  counties  of  this  district 
from  which  no  precinct  returns  aud  poll-lists  were  sent  to  the  State 
board,  and  that  fact  being  taken  in  connection  with  the  gross  miscon- 
duct as  evidenced  by  the  testimony,  extracts  from  which  are  given  above, 
it  has  been  a  question  with  your  committee  whether  the  vote  of  the  en- 
tire county  shonld  not  be  rejected.  If  proper  returns  had  been  made  to 
the  State  board  they  would  have  furnished  the  means  of  ascertaining 
and  correcting  the  vote  of  this  county,  but  as  the  conclusions  at  which 
your  committee  have  arrived  renders  it  unnecessary  to  reject  this 
entire  county,  because  its  rejection  would  not  change  the  result,  your 
committee  has  deemed  it  best  only  to  reject  the  vote  of  Allendale  pre- 
cinct, as  to  which  the  facts  are  conclusively  shown  by  the  testimony, 
and  to  correct  the  vote  at  Ferril's  Store,  so  as  to  give  each  party  the 
vote  actually  received. 

COLLETON  CO. — WATERBOROUOH  PRECINCT. 

The  testimony  shows  conclusively  that  the  mode  of  managing  this 
poll  was  most  unfair;  that  the  managers  were  under  control  of  the 
Democratic  county  chairman,  who  was  also  chairman  of  the  commis- 
sioners of  election,  who  appointed  all  of  the  managers  from  one  party, 
and  appeared  also  as  the  attorney  for  the  contestee.  The  following  ex- 
tracts show  something  of  the  methods  resorted  to : 

Testimony  of  William  A.  Paul  (page  336) : 

At  the  opening  of  the  ballot-box  the  managers  found  the  box  to  contain  one  thou- 
sand and  thirty-six  ballots;  at  the  closing  of  the  polls  the  amount  of  the  poll-list  was 
eight  hundred  and  ninety-five  ballots;  the  excess  found  in  the  box  was  one  hundred 
aud  forty-one  according  to  my  account.  After  the  box  was  opened  the  managers  were 
quite  undecided  as  to  how  they  would  stir  the  votes  up,  and  they  were  for  some  time 
devising  a  plan  how  they  could  mix  them  so  as  to  take  out  the  excess  over  the  poll- 
list  and  to  take  out  a  majority  of  Republican  ballots  if  possible,  which  they  succeeded 
in  doing ;  and  I  found  after  they  had  commenced  to  draw  the  ballots  from  the  box 
when  they  would  draw  out  two  Democrat  ballots  and  destroy  them  they  would 
draw  out  from  five  to  six  Republican  ballots  and  destroy  them  also  ;  and  one  of  the 
managers  was  blindfolded  who  was  required  to  draw  the  ballots,  and  turning  his  back 
to  the  table  upon  which  the  box  was  placed,  the  box  being  set  into  a  large  stick- 
basket,  the  box  not  being  able  to  hold  the  ballots  after  being  thoroughly  stiiTcd,  they 
then  stirred  the  ballots  into  this  basket,  from  which  they  drew  the  excess  of  the  poll- 
list.  The  manager  who  was  required  to  do  the  drawing  deliberately  passed  the  ballots 
through  his  hands;  by  so  doing  one  ballot  was  easily  distinguished  from  another; 
they  succeeded  nicely  in  carrying  out  their  premeditated  plan. 

Also  the  testimony  of  Daniel  Sanders,  on  p.  370  : 

Then  came  the  confusion  about  the  votes  ;  both  Republicans  and  Democrats  crowded 
around  the  box  ;  the  box  was  opened  in  the  presence  of  all ;  the  law  was  furnished 
the  managers  how  they  should  proceed  before  counting  votes  ;  the  box  was  so  full  that 
the  ballots  could  not  be  mixed  according  to  law.  The  box  was  set  into  a  stick-bas- 
ket ;  one  of  the  managers  tried  to  mix  the  votes  in  the  box,  and  he  failed  to  mix  them, 
and  then  emptied  the  votes  into  the  basket.  Then  the  managers  got  confused  how 
they  would  mix  them  ;  they  stirred  them  up  ;  they  brought  two-thirds  of  the  tickets, 
■oa  well  as  I  could  see,  to  the  top  were  Republican  tickets ;  then  the  manager  com- 


SMALLS    VS.    TILLMAN.  .       481 

menced  drawing  ;  they  drew  for  a  while  from  the  top,  and,  as  well  as  I  could  see,  the 
mauaiier  sometimes  would  draw  from  the  bottom.  All  this  occurred  after  counting 
the  number  of  ballots  in  the  box.  There  was,  to  my  recollectiou,  140  ballots  in  excess 
of  the  names  on  the  poll-list ;  then  the  ballots  were  put  back  into  the  box — 130  drawn 
out,  to  the  best  of  my  recollection.  While  drawing,  or  before  drawing,  they  were 
stirred  up  again  in  the  same  basket;  then  one  of  the  managt-rs  was  blindfolded;  he 
drew  out  about  twenty  Democratize  ballots — would  not  be  positive  to  that  number — 
and  the  balance  were  Republican  ballots. 

It  is  clear  that  there  were  from  90  to  110  votes  illegally  taken  from 
the  coutestaut  at  this  poll,  aud  the  same  number  illegally  given  to  the 
contestee. 

The  entire  conduct  of  the  election  in  Colleton  is  most  discreditable  to 
those  who  had  it  in  charge.  Except  one  Republican  on  the  county 
board,  appointed  by  the  governor,  and  who  was  outvoted  by  the  other 
two,  every  election  officer  was  appointed  from  the  coutestee's  partisans 
save  one  manager  at  Green  Pond  poll,  and  their  sole  purpose,  appar- 
ently, was  to  subserve  his  interests.  Three  large  Republican  precincts, 
Adams'  Run,  Ashepoo,  and  Bennett's  Point,  having  been  abolished,  this 
vote  was  thrown  to  Glovers nlle  and  Jacksonborough.  The  Democratic 
managers  at  Gloversville  did  not  open  the  poll  on  the  day  of  election, 
and  to  Jacksonborough  the  commissioner  sent  the  smaller  of  two  sizes 
of  boxes.    At  one  o'clock  this  box  was  full  of  ballots. 

It  contained  G18,  and  the  managers  refused  to  use  another,  though 
over  100  Republican  voters  were  standing  at  the  polls  waiting  to  vote, 
and  others  were  in  sight  approaching.  Whilst  neither  the  county  nor 
State  board  had  under  the  plain  wording  of  the  statute,  which  has  been 
construed  bj^  the  State  court  of  last  resort,  any  judicial  power  as  to 
the  vote  for  Congressman,  yet  they  threw  out  this  box,  depriving  the 
contestant  of  not  less  than  618  votes,  and  without  any  assigned,  known, 
or  apparent  reason  the  board  failed  to  canvass  the  276  votes  polled  for 
contestant  at  Horse  Pen.  (Record,  pp.  353,  351,  355,  356,  357,  and  378 
and  following.) 

Besides  the  failure  to  open  the  Gloversville  poll,  whereby  contestant 
lost  100  votes,  the  testimony  shows  that  he  lost  700  more  by  the  failure 
to  open  the  Summerville  poll,  where  a  large  number  were  actually 
present  aud  listed ;  besides,  more  than  a  hundred  votes  were  lost  by 
illegally  closing  the  poll  at  Jacksonborough. 

At  Delama,  also,  the  manager  failed  to  open  the  poll,  whilst  at  Snider's 
Cross-Roads,  Smoak's  Cross-Roads,  and  Carter's  Ford  the  supervisors 
were  hindered  and  obstructed  in  the  discharge  of  their  ofl&cial  duties. 
At  Maple  Cane  26  Democratic  ballots  were  stuffed  into  the  box,  and 
25  Republican  were  withdrawn,  whereby  the  contestant  lost  that  num- 
ber of  legal  ballots,  and  the  same  number  were  left  to  be,  and  were, 
counted  for  the  contestee. 

At  Bell's  Cross-Roads  31  of  contestant's  votes  were  withdrawn  and  a 
like  number  of  fraudulent  ones  counted  for  the  contestee.  In  this  county 
alone  it  is  shown  that  from  1,100  to  1,800  Republican  voters  were  deprived 
of  an  opportunity  of  voting  by  failure. to  open  and  illegally  closing  polls, 
whilst  223  fraudulent  ballots  were  stuffed  into  the  boxes. 

A.  P.  Holmes  (p.  379)  testifies: 

Q.  What  kind  of  a  box  did  they  send  to  Jacksonborough  and  other  strong  Repub- 
lican precincts,  where  large  number  of  votes  are  usually  polled  f — A.  They  wereaU  of 
a  smaller  size  box,  there  being  two  sizes;  though  the  box  sent  to  Jacksonborough 
would  have  been  ample  large  enough  to  have  held  the  votes  of  that  polling  precinct 
if  the  Gloversville  polling  precinct  had  not  been  closed,  the  next  nearest  voting  place. 

Q.  How  mauy  polling  precincts  were  not  opened  d uring  the  election  day  f — A.  Three. 

Q.  Were  or  were  they  not  usually  strong  Republican  precincts  ? — A.  Two  usually 
give  large  Republicau  majorities;  the  third  one  a  small  Democratic  majority. 

H.  Mis.  35 U 


482  DIGEST  OF  ELECTION  CASES. 

Q.  Did  the  commissioners  of  election  canvass  at  all  the  votes  of  the  Jacksonbor- 
ough  precinct  ? — A.  They  did  not. 

Q.  Then  none  of  the  votes  cast  for  Robert  Smalls  at  the  Jacksonborough  precinct 
•were  counted  for  him  by  the  commissioners  ? — A.  They  were  not. 

Q.  Were  there  any  polls  where  the  managers  failed  to  canvass  any  votes  for  Con- 
gressman; and,  if  so,  at  what  polls? — A.  The  managers  of  election  at  Horse  Pen  poll 
made  no  returns  for  members  of  Congress  to  the  board  of  canvassers ;  the  whole  num- 
ber of  vot«8  cast  at  that  poll  was  two  hundred  and  seventy-six.  On  examination  of 
the  ballot-box,  as  presented  to  the  board  of  canvassers,  ballots  were  found  in  the  box 
containing  the  name  of  Robert  Smalls  for  Congress. 

Q.  Isnot  Jacksonborough  one  of  the  strongest  Republican  precincts  in  the  county  f — 
A.  It  is  among  one  of  the  strongest  in  the  county. 

Q.  Was  the  Republican  vote  at  Jacksonborough  largely  increased  at  this  election  T 
If  so,  state  the  cause. — A.  Gloversville  polling  precinct  having  been  closed  on  election 
day,  and  the  precinct  at  Adams'  Run,  Ashepoo,  and  Bennett's  Point  having  been 
abolished,  necessarily  increased  the  voters  at  Jacksonborough. 

Q.  Were  they  all  Republican  precincts  ? — A.  They  were  all  largely  Republican  pre- 
cincts. 

Q.  Is  Jacksonborough  the  nearest  point  or  the  most  convenient  to  the  voters  of  those 
precincts  you  have  named  ? — A.  It  is  to  some. 

Q.  Is  it  to  most  of  them  ? — A.  It  is. 

Page  385 : 

Q.  Did.  you,  as  a  member  of  that  board,  object  to  the  way  in  which  the  commis- 
sioners, or  a  majority  of  them,  proceeded  to  canvass  the  votes  ? — A.  I  did.  I  objected 
to  the  canvassing  of  the  Walterboro'  precinct,  where  the  statement  of  the  managers 
gave  a  total  number  of  the  votes  cast  and  returned  of  nine  hundred  and  fifteen,  whereas 
the  managers'  own  poll-list  called  for  eight  hundred  and  ninety-five  names  of  voters 
I  objected  to  the  excess  vote  of  twenty  that  has  been  reported.  I  objected  to  the  re- 
tiirns  of  the  managers  made  at  Horse  Pen  of  two  hundred  and  seventy-six  votes,  and 
returning  no  vote  for  Congressman  from  that  poll,  or  Presidential  electors,  because  on 
examination  of  the  box  the  box  was  found  to  contain  votes  for  the  Republican  Congress- 
man and  Presidential  electors.  Also  of  Snider's  Cross-Roads  the  managers  made  no 
returns  for  Presidential  electors,  and  on  examination  the  ballot-box  was  found  to  have 
contained  votes  for  the  same.  Ridgeville,  in  like  manner,  the  managers  failed  to  re- 
port a  total  number  of  votes  cast,  according  to  their  instructions,  and  also  failed  to 
return  any  votes  for  Presidential  electors,  and  on  examination  the  box  was  fou  nd  to 
have  contained  votes  for  the  same.  I  objected  to  the  manner  in  which  the  Jackson- 
borough box  was  disposed  of.  I  also  objected  to  the  George's  Station  returns,  for  reasons 
that  the  managers  failed  to  return  any  votes  for  Presidential  electors,  and  on  exami- 
nation the  box  was  found  to  contain  ballots  for  the  same  ;  also  because  the  poll-list 
called  for  eleven  hundred  and  sixty-two,  and  the  statement  of  the  managers  was  eleven 
hundred  and  sixty-six.  These  were  some  of  the  irregularities  that  caused  me  to  object 
to  some  of  the  proceedings  of  the  board. 

Q.  Did  you  raise  these  objections  and  call  for  a  decision  on  them  from  the  board,  or 
did  you  simply  take  a  note  of  them? — A.  I  raised  the  objections,  and  had  the  decision 
of  the  board  of  two  or  three  of  the  most  prominent  cases  named,  and  they  decided  by 
the  usual  majority  of  two  not  to  go  behind  the  returns  of  the  managers,  after  which  I 
just  caUed  their  attention  in  each  instance,  and  made  note  of  the  irregularities. 

The  vote  of  the  county  is  certified  for — 

Contestee 3, 47.5 

For  contestant <;,  776 

Adding  Jacksonborough 618 

Horse  Pen - 276 

Walterborough 90 

Contestant -• 3,760 

Deducting  Walterborough,  90 — 
Contestee - 3,  385 

Contestant's  majority 375 

RECAPITULATION. 

Corrected  statement  of  the  vote  of  the  fifth  Congressional  district  of 
South  Carolina : 

Tillman.  Smalls. 

Aiken 3,409  1,058 

Hampton 1,019  1,  166 


SMALLS    VS.    TILLMAN.  4,«3 

Barnwell 4,700  2,431 

Colleton 3,  sao  3,  760 

Beaufort 391  5, 978 

12, 904  14,  393 

Smalls'  majority,  1.489. 

I  therefore  recommend  the  adoption  of  the  following  resolutions : 
Eesolved,  That  George  D.  Tillman  was  not  elected  as  a  Representa- 
tive to  the  Forty-seventh  Congress  from  the  fifth  Congressional  dis- 
trict of  South  Carolina,  and  is  not  entitled  to  retain  the  seat  which  he 
now  occupies  in  this  House. 

Resolved,  That  Robert  Smalls  was  duly  elected  as  a  Representative 
from  the  fifth  Congressional  district  of  South  Carolina  in  the  Forty- 
seventh  Congress,  and  is  entitled  to  his  seat  as  such. 

Ji^O.  T.  WAIT. 
J.  M.  RITCHIE. 
S.  H.  MILLER. 
A.  H.  PETTIBONE. 

F.  JACOBS.  Jr. 
WM.  G.  THOMPSON. 

G.  C.  HAZELTOX. 
I  agree  in  the  conclusion  reached  in  the  above  report. 

A.  A.  RAKNEY. 

VIEWS  OF  THE  MINORITY. 

The  undersigned,  members  of  the  Committee  on  Elections,  charged 
with  the  consideration  of  the  contest  for  a  seat  in  the  House  of  Repre- 
sentatives from  the  fifth  Congressional  district  of  South  Carolina,  sub- 
mit the  following  minority  report : 

This  district  is  composed  of  six  counties,  viz,  Barnwell,  Colleton, 
Edgefield,  Beaufort,  Aiken,  and  Hampton.  The  official  returns  of  the 
vote  for  Congress  show  a  majority  of  8,038  for  contestee.  Contestant 
claims  that  this  majority  should  be  wiped  out,  and  himself  declared  to 
have  been  elected,  upon  grounds  which  may  be  summarized  as  follows  : 

1.  Because  large  numbers  of  votes  were  cast  for  him  which  were  not 
counted  for  him  by  the  precinct  managers. 

2.  Because  large  numbers  of  votes  counted  for  him  by  the  precinct 
managers  were  unlawfully  rejected  by  the  county  canvassers. 

3.  Because  from  the  three  counties  of  Barnwell,  Colleton,  and  Edge- 
field the  returns  and  poll-lists  were  not  forwarded  to  the  governor  and 
secretary  of  state,  as  provided  for  by  law. 

4.  Because  of  violence  and  intimidation  in  all  the  counties  composing 
the  fifth  Congressional  district,  except  Beaufort,  whereby,  as  he  claims, 
many  of  his  adherents  were  prevented  from  voting  for  him. 

These  four  charges,  it  is  believed,  with  the  testimony  adduced  in  sup- 
port of  them,  comprise  the  whole  of  contestant's  case.  The  first  three 
of  them  are  so  connected  with  the  provisions  of  the  election  laws  of 
South  Carolina  that  in  order  to  pass  properly  and  intelligently  upon 
them  it  is  first  necessary  to  acquire  some  knowledge  of  those  laws. 

The  act  of  1868  provides  that  the  governor  shall  appoint  three  com- 
missioners of  election  in  each  county,  whose  duties  prior  to  the  election 
are  simply  to  appoint  three  managers  of  election  at  each  precinct,  and 
to  provide  one  ballot-box  for  each  election  precinct.  Within  three  days 
after  the  election  the  precinct  managers  were  required  to  deliver  to  the 
commissioners  of  election  the  poll-lists  and  the  boxes  containing  the  bal- 
lots, whereupon  the  commissioners  of  election  became  the  county  board 


48  1-  DIGEST    OF    ELECTIOX    CA«ES. 

of  canvassers,  whose  duty  it  was  to  coniit  the  baHots  in  the  boxes,  to 
"  make  such  statements  thereof  as  the  nature  of  the  election  shall  re- 
quire," and  to  transmit  to  the  board  of  State  canvassers  any  protests 
and  all  papers  relating  to  the  election. 

This  law,  it  will  be  observed,  left  the  ballots  in  the  hands  of  the  pre- 
cinct managers  of  election  for  three  days  uncounted,  and  liable  to  be 
tampered  with  to  any  extent  which  might  be  desired.  To  remedy  this 
evil  the  following  amendment  to  the  election  law,  ai)proved  March  12, 
1872,  was  passed : 

Section  1.  Be  it  evaded  iy  the  senate  and  house  of  representatives  of  the  State  of  South 
Carolina,  note  met  and  sitting  in  general  assembly,  and  by  the  authority  of  the  same,  That 
all  general  and  special  elections  held  pursuant  to  the  constitution  of  this  State  shall 
be  regulated  and  conducted  according  to  the  rules,  principles,  and  provisions  herein 
prescribed. 

Sec.  2.  The  commissioners  of  election  shall  provide  one  box  for  each  election  pre- 
cinct. An  opening  shall  be  made  in  the  lid  of  the  box,  not  larger  than  shall  be  suffi- 
cient for  a  single  ballot  to  be  inserted  therein  at  one  time,  through  which  each  ballot 
received,  proper  to  be  placed  in  such  box,  shall  be  inserted  by  the  person  voting,  and 
by  no  other.  Each  box  shall  be  provided  with  a  sufficient  lock,  and  such  box  shall 
be  publicly  opened  and  inspected  to  see  that  it  is  empty  and  secure,  and  then  locked 
just  before  the  opening  of  the  poll,  and  the  keys  returned  to  the  managers,  and  shall 
not  be  opened  during  the  election.  Each  box  for  such  precinct  shall  be  labeled  as 
follows:  "Congress/"' State,"  "  Circuit,"  and  "  County  Officers." 

Sec.  3.  At  the  close  of  the  election  the  managers  and  clerk  shall  immediately  pro- 
ceed, publicly,  to  open  theballol-box  and  count  the  ballots  therein,  and  continue  such  count, 
without  adjournment  or  interruption,  until  the  same  is  completed,  and  make  such  statement 
of  the  result  thereof,  and  sign  the  same,  as  the  nature  of  the  election  shall  require.  If,  in 
counting,  two  or  more  like  ballots  shall  be  found  folded  together  compactly,  only  one 
shall  be  counted  and  the  others  destroyed ;  but  if  they  bear  different  names,  the  same 
shall  be  destroyed  and  not  coTinted.  If  more  ballots  shall  be  found  on  opening  the 
box  than  there  are  names  on  the  poll-list,  all  the  ballots  shall  be  returned  to  the  box 
and  thoroughly  mixed  together,  and  one  of  the  managers  or  the  clerk  shall,  without 
seeing  the  ballots,  draw  therefrom  and  immediately  destroy  as  many  ballots  as  there 
are  in  excess  of  the  number  of  names  on  the  poll-list.  Within  three  days  thereafter 
the  chairman  of  the  board  of  managers,  or  one  of  them,  to  be  designated  in  writing 
by  the  board,  shall  deliver  to  the  commissioners  of  election  the  poll-list,  the  boxes 
containing  the  ballots,  a«d  a  ivritten  statement  of  the  result  of  the  election  in  his  precinct. 

Sec.  4.  After  the  final  adjournment  of  the  board  of  county  canvassers,  and  within 
the  time  prescribed  in  this  act,  the  chairman  of  said  board  shall  forward,  addressed 
to  the  governor  and  secretary  of  state,  by  a  messenger,  the  returns,  poll  list,  and  all 
papers  appertaining  to  the  election,  the  said  messenger  to  be  paid  his  actual  expenses 
upon  a  certificate  to  be  furnished  him  by  the  secretarj' of  state.  Said  certificate 
shall  be  paid  out  of  the  funds  provided  for  the  payment  of  commissioners  and  man- 
agers of  election. 

Sec.  6.  All  acts  or  parts  of  acts  in  any  way  conflicting  with  this  act  are  hereby 
repealed. 

The  further  duties  of  the  county  board  of  canvassers  are  as  follows : 

Sec.  18.  They  shall  make  separate  statements  of  the  whole  number  of  votes  given 
in  such  county  for  Representative  in  Congress,  and  separate  statements  of  all  other 
votes  given  for  other  officers.  Such  statements  shall  contain  the  names  of  the  per- 
sons for  W'hom  such  votes  were  given,  and  the  number  of  votes  given  for  each,  which 
shall  be  written  out  in  words  at  full  length. 

Sec.  13.  There  shall  be  prepared  by  the  commissioners  three  separate  lists  of  each 
statement,  besides  the  lists  to  be  filed  in  the  office  of  the  county  clerk  or  secretary  of 
state,  and  each  list  shall  be  certified  to  as  correct  by  the  signature  of  the  commission- 
ers subscribed  to  such  certificate. 

Sec.  20.  After  the  final«edjournment  of  the  board  of  county  canvassers,  and  within 
the  time  prescribed  in  section  15  of  this  chapter,  the  chairman  of  the  board  shall  de- 
posit in  the  nearest  post-office,  directed  to  the  governor,  secretary  of  state,  and  comp- 
troller-general (the  full  postage  paid),  each  one  of  the  certified  copies  of  the  statement 
and  certificate  of  votes  prepared  as  provided  in  the  last  preceding  section. 

The  board  of  State  canvassers  is  composed  of  the  secretary  of  state, 
comptroller-general,  attorney-general.  State  auditor.  State  treasurer, 
adjutant  and  inspector  general,  and  the  chairman  of  the  committee  on 


SMALLS    VS.    TILLMAN.  4^5 

privileges  aucl  elections  of  the  house  of  representatives,  and  its  duties 
are  thus  prescribed : 

Sec.  24.  TUe  board,  when  thus  formed,  shall,  upon  the  certified  copies  of  the  statements 
made  by  the  board  of  county  cdnrassers,  proceed  to  make  astatemeiit  of  the  whole  num- 
ber of  votes  given  at  such  election  for  the  various  officers,  and  for  each  of  them  voted 
for,  distinguishing  the  several  counties  in  which  they  were  given.  Tbey  shall  certify 
such  statements  to  be  correct,  and  subscribe  the  same  with  their  proper  names. 

Sec.  25.  They  shall  make  and  subscribe,  on  the  proper  statement,  a  certificate  of 
their  determination,  and  shall  deliver  the  same  to  the  secretary  of  state. 

Sec.  26.  Ujwn  such  statements  they  shall  then  proceed  to  determine  and  declare  what 
persons  have  been,  by  the  greatest  number  of  votes,  duly  elected  to  such  offices  or 
either  of  them.  They  shall  have  power,  and  it  is  made  their  duty,  to  decide  all  cases 
under  protest  or  contest  that  may  arise  when  the  power  to  do  so  does  not  by  the  con- 
stitution, reside  in  some  other  body.  , 

The  power  to  decide  contests  conferred  bj^  section  26  has  been  held 
by  the  supreme  court  of  the  State  not  to  extend  to  contests  respecting 
election  to  a  seat  in  the  House  of  Representatives  of  the  United  States, 
on  the  ground  that  his  power  falls  within  the  exception,  residing,  under 
the  constitution,  in  the  House  itself. 

The  foregoing  comprise  all  the  provisions  of  law  material  to  be  here 
considered,  and  it  is  in  the  light  of  these  provisions  that  contestant's 
charges  are  to  be  examined. 

I.  The  first  of  these  charges,  as  summarized  above,  is,  that  large 
numbers  of  votes  were  cast  for  him  which  were  not  counted  for  him  by 
the  precinct  managers. 

The  election  law  of  South  Carolina,  as  quoted  above,  provides  that  if 
more  votes  are  found  in  the  ballot-box  than  there  are  names  on  the 
poll-list,  all  the  ballots  shall  be  returned  to  the  box  and  thoroughly 
mixed  together,  and  that  one  of  the  managers,  or  the  clerk,  without 
seeing  the  ballots,  shall  thereupon  draw  therefrom  and  immediately  de- 
stroy as  man}-  ballots  as  there  are  in  excess  of  the  number  of  names  on 
the  poll-list.  At  a  number  of  precincts  in  the  fifth  Congressional  dis- 
trict of  South  Carolina  excessive  ballots  were  found  in  the  boxes  and 
were  drawn  out  by  a  blindfolded  manager,  as  required  by  law.  And 
the  only  testimony  in  the  record  tending  to  prove  the  above  charge  on 
behalf  of  contestant,  is  the  allegations  of  some  of  his  witnesses  that 
discrimination  was  made  in  drawing  out  this  excess  of  ballots  at  cer- 
tain i^recincts,  through  which  the  contestant  lost  more  than  his  due 
proportion  of  the  votes  cast  for  him.  On  the  other  hand,  as  to  every 
precinct  save  one  against  which  this  charge  is  made,  the  otficer  who 
drew  out  the  excess,  and  one  or  more  of  the  other  officers  who  wit- 
nessed it,  were  produced,  and  testified  that  the  drawing  was  in  strict 
conformity  with  the  requirements  of  the  law,  done  publicly,  without 
seeing  the  ballots,  without  discrimination,  and  with  perfect  fairness. 
And  whether  tested  by  their  means  of  knowledge,  their  intelligence, 
their  social  standing  and  character,  or  any  other  of  the  tests  which  are 
applied  in  non-partisan,  fair,  judicial  investigation,  where  the  witnesses 
irreconcilably  differ,  no  man  who  will  read  the  record  can  hesitate  to 
believe  that  the  witnesses  produced  on  behalf  of  the  contestee  are  enti- 
tled to  superior  credit.  There  is  absolutely  no  unpartisan,  non-political 
test  which  can  possibly  lead  to  any  other  conclusion. 

It  is  to  be  further  observed  here,  that  there  is  no  testimony  whatever 
tending  to  fix  the  responsibility  for  the  excess  of  ballots  upon  the  con- 
testee's  adherents.  Republicans  charge  it  upon  the  Democrats,  and  the 
Democrats  charge  it  upon  the  Republicans  ;  but  there  is  no  proof,  nor 
anything  which  is  offered  as  proof,  by  either  side  upon  the  subject.  No 
single  witness  on  either  side  claims  to  have  either  seen  or  heard  of  a 
"  tissue  ballot,''  or  any  other  device  for  the  purpose  of  creating  an  excess 


486 


DIGEST    OF    ELECTION   CASES. 


of  ballots,  at  auy  precinct  in  the  entire  district.  There  is  some  testi- 
mony as  to  voting  more  tickets  than  one,  on  both  sides  5  but,  if  all  the 
testimony  upon  this  subj  ect  on  both  sides  be  accepted  as  true,  it  woulp 
not  account  for  as  many  as  fifty  excessive  ballots  in  the  district. 

Finally,  upon  this  subject,  if  all  the  testimony  offered  on  behalf  of 
contestant  in  support  of  this  charge  be  taken  as  true,  it  would  not  ma- 
terially affect  the  result  of  the  election.  The  following  is  a  complete 
list  of  the  precincts  as  to  which  there  is  any  testimony  in  the  record 
tending  to  prove  fraud  or  unjust  discrimination  of  this  character: 


Aiken  County,  SummerhiU 

Aiken  County,  Jordan's  Mill 

Colleton  County,  Bell's  Cross-Roads... 

Colleton  County,  Maple  Lane 

Colleton  County,  Walterboro'  (about). 
Hampton  County,  Bamsville 


B 

s 

•S 

^^ 

•^^ 

0  0 

a  0 

"^i 

u 

3 

A 

M 

H 

3 

58 

61 

22 

22 

12 

31 

43 

1 

27 

28 

40 

100 

140 

69 

160 

129 

125 

398 

423 

At  Snider's  Cross-Eoads,  Colleton,  on  the  other  hand,  contestant's 
own  witnesses  show  that  only  one  Eepublican  ballot  was  drawn  out, 
with  a  quantity  of  Democratic  ballots,  the  number  of  which  is  not  stated, 
while  at  Page  &  Harberson's  Store,  in  Aiken  County,  nineteen  Demo- 
cratic and  seven  Eepublican  ballots  were  destroyed. 

No  testimony  on  behalf  of  contestee  as  to  SummerhiU  precinct,  in 
Aiken  County,  appears  to  have  been  taken.  As  to  every  other  precinct, 
the  charge  of  discrimination  and  fraud  in  the  matter  of  the  excess  of 
ballots  is  met  and  answered  as  fully  and  completely  as  it  is  possible  to 
meet  acharge  of  that  character.  Yet,  if  held  to  be  sustained,  it  is  obvious 
from  the  foregoing  statement,  in  the  most  favorable  view  possible  for 
contestant,  viz,  that  none  of  the  excessive  ballots  were  cast  by  his  adher- 
ents, that  the  sum  total  of  votes  thus  lost  to  him,  at  all  the  precincts  where 
discrimination  of  this  character  is  charged  in  the  testimony,  did  not 
exceed  398. 

II.  The  second  charge  is,  that  large  numbers  of  votes  counted  for 
him  by  the  precinct  managers  were  unlawfully  rejected  by  the  county 
canvassers. 

There  is  not  one  word  of  testimony,  throughout  the  entire  record, 
tending,  however  remotely,  to  prove  the  truth  of  anj-  such  charge  as 
this. 

There  were  seven  precincts  in  the  fifth  Congressional  district  of  South 
Carolina  whose  vote  for  Eepresentative  in  Congress  was  not  counted, 
viz :  Jacksonborough  and  Horse  Pen  i^recincts  in  Colleton  County,  and 
Ethridge's  Store,  Perry's  Cross-Eoads,  Coleman's  Cross-Eoads,  Caugh- 
man's  store,  and  Liberty  Hill,  in  Edgefield  County.  The  facts  are  as 
follows : 

It  has  been  shown  above  that  in  order  to  remedy  the  evil  in  the  elec- 
tion law  of  1868,  under  which  the  ballot-boxes  were  exposed  for  three 
days  following  the  election  to  the  risk  of  unauthorized  and  corrupt  in- 
terference, the  amendment  of  1872  required  the  votes  to  be  counted,  not 
by  the  county  board  of  canvassers,  as  required  by  the  act  of  1868,  but 


SMALLS    VS.    TIILMAN.  487 

by  the  i)reciuct  managers  themselves,  immediately  after  the  close  of  the 
balloting,  aud  in  public;  and  that  the  precinct  managers  should  further 
make  aud  sign,  and  within  three  days  deliver  to  the  commissioners  of 
electiou,  a  written  statement  of  the  result  of  the  election  in  their  pre- 
cinct. As  the  ballot-boxes  still  remain  for  three  days  in  the  hands  of 
the  precinct  managers,  it  is  obvious  that  this  amendment  would  be 
without  effect,  if  the  county  board  of  canvassers  were  themselves  still  to 
count  the  ballots  found  in  the  boxes  when  they  con%'ened  one  week 
after  the  election,  and  to  make  up  their  statement  from  the  contents  of 
the  boxes  at  that  time.  Hence,  the  county  board  of  canvassers  held, 
verji  naturally  and,  we  think,  correctly,  that  under  the  law  as  amended 
the  counting  of  the  ballots  in  public  by  the  precinct  managers  was  in- 
tended to  be  final,  and  that  the  county  canvassers  could  canvass  only 
the  returns  sent  up  to  them  by  the  precinct  managers.  And  they  did 
canvass  the  returns  of  every  precinct  which  were  sent  up  to  them  ;  but 
no  returns  being  sent  up  from  the  two  i)reciiicts  in  Colleton  and  the  five 
precincts  in  Edgefield  mentioned,  they  had  nothing  which  they  could  can- 
vass from  those  precincts. 

At  Jacksonborough  the  ballot-box  became  so  filled  with  ballots  that  at 
one  o'clock  p.  m.  it  could  hold  no  more ;  whereupon  it  was  agreed,  both 
by  the  managers  of  the  election  and  the  Republican  supervisor,  that, 
under  the  circumstances,  they  had  no  authority  to  open  the  box  and 
count  the  ballot.  (See  Record,  p.  346.)  This  accounts  for  the  absence 
of  returns  from  this  precinct. 

Some  attempt  was  made  to  charge  the  adherents  of  contestee  with 
responsibility  for  the  failure  to  send  a  box  to  this  precinct  large  enough 
to  hold  all  the  ballots  which  might  be  offered.  The  county  commis- 
sioners of  election,  however,  are  the  officers  charged  with  the  duty  of 
providing  the  box  for  each  election  precinct.  These  commissioners  con- 
sisted of  two  Democrats  and  one  Republican.  The  latter  admits  that 
he  was  present  when  the  boxes  were  selected  for  the  various  precincts 
in  Colleton  County  ;  that  they  saw  the  box  selected  for  Jacksonborough, 
and  does  not  pretend  that  he  objected  to  its  size,  or  suggested  the  selec- 
tion of  a  larger  one.  (See  Record,  pp.  378,  379.)  Further,  the  record 
shows  that  the  vote  at  this  precinct  at  former  elections  had  rarely  ex- 
ceeded 300,  while  at  this  election  the  box  received  618  ballots  before  it 
became  full. 

Whether  the  managers  might  or  might  not  have  lawfully  provided 
another  box,  and  continued  to  receive  tbe  ballots,  it  is  perhaps  not  nec- 
essary here  to  inquire.  The  law  provided  for  one  box  at  each  election 
precinct,  and  the  testimony  shows  that  the  polls  were  closed  when  the 
box  became  full  only  after  conference  and  full  agreement  between  the 
representatives  of  both  parties  as  to  the  j)ropriety  of  that  course.  (See 
Record,  p.  346.) 

As  to  Horse  Pen,  the  other  precinct  in  Colleton  County,  a  return  was 
sent  up  by  the  managers  of  the  election,  which,  evidently  by  oversight, 
however,  omitted  the  vote  for  Representative.  At  three  other  precincts 
in  this  county,  viz,  Snider's  Cross-Roads,  Ridgeville,  and  George's  Sta- 
tion, the  precinct  returns,  through  similar  oversight,  omitted  the  vote 
for  Presidential  electors.  But,  as  conclusively  demonstrating  the  ab- 
sence of  fraud  or  corrupt  motives,  either  upon  the  part  of  the  precinct 
managers  in  making  their  omissions  or  upon  the  part  of  the  county 
board  of  canvassers  in  adopting  the  above-mentioned  construction  of 
the  electiou  law  as  amended,  limiting  their  powers  to  the  canvass  of  the 
precinct  returns,  it  needs  only  to  be  remarked  that  every  one  of  these  pre- 
cincts, as  a  fact,  undisputed,  and  conceded  in  tJie  record,  gave  Democratic 


488  DIGEST    OF    ELECTION    CASES. 

majorities.  (See  Record,  at  pp.  330,  386,  as  to  Horse  Pen  ;  p.  386,  as  to 
Snider's  Cross-Roads  ;  at  p.  487,  as  to  Ridge\  ille ;  and  at  i)p.  3l'4  and 
327,  as  to  George's  Station.) 

The  vote  of  the  five  precincts  in  Edgefield  County  above  referred  to 
was  not  canvassed  for  the  same  reason,  namely,  the  fact  that  no  returns 
were  sent  up  by  the  precinct  managers,  and  there  was,  therefore,  nothing 
which  the  county  board  of  canvassers  could  canvass.  And  as  to  these 
precincts  not  only  is  it  not  shown,  or  claimed  even,  in  the  testimony 
that  any  one  of  them  gave  a  majority  for  contestant,  but  it  is  neither 
claimed  nor  shown  that  a  single  vote  was  cast  for  him  at  four  of  them, 
nor  that  there  was  any  violence,  fraud,  or  intimidation  i^racticed  at  them, 
either.  In  other  words,  there  is  absolutely  neither  proof  nor  claim,  in 
the  record,  that  contestant  was  not  a  gainer  as  to  each  of  these  five 
precincts,  as  he  unquestionably  was  as  to  Horse  Pen  precinct,  in  Colleton 
County,  by  the  omission  of  theprecinct  managers  to  send  up  returns  of 
the  votes  cast  at  them  for  Representative  in  Congress. 

It  is  to  be  added  that  in  each  of  these  counties,  one  of  the  three  mem- 
bers of  the  county  board  of  canvassers  was  a  Republican,  and  that  in 
each  of  them  the  Republican  and  Democratic  members  united  in  sign- 
ing and  certifying  to  the  correctness  of  the  statement  of  the  result  of 
the  election  in  such  county  ;  and  one  of  them,  the  Republican  member 
of  the  board  of  canvassers  for  Edgefield  County,  testifies  in  the  Record, 
at  page  210,  that  he  concurred  in  the  construction  of  the  law  that  the 
board  could  not  canvass  the  vote  of  precincts  from  which  no  returns 
had  been  sent  up.  As  to  the  Republican  member  for  Colleton  County, 
see  his  testimony  at  page  388  of  the  Record. 

Our  colleagues,  the  niajority  of  the  second  subcommittee,  will  find 
themselves  to  have  been  wholly  misled  as  to  the  facts  in  their  statement 
at  page  3  of  their  report,  that  these  boards  "  assumed  to  exercise  ju- 
dicial powers  in  throwing  out  entire  boxes,  and  in  not  counting  the  vtoe 
polled  for  Congressman  at  others,  and  without  any  pretense  of  cause.'' 
They  did  not  throw  out  a  single  box,  nor  did  they  fail  to  canvass  the 
vote  for  Congressman  of  any  precinct  from  which  the  managers  sent  up 
any  return  to  be  canvassed. 

III.  The  contestant's  third  charge  is  that  from  the  three  counties  of 
Barnwell,  Colleton,  and  Edgefield,  the  returns  and  poll-list  were  not  for- 
warded to  the  governor  and  secretary  of  state  by  the  chairmen  of  the 
boards  of  county  canvassers  of  those  counties,  as  directed  bylaw  ;  and 
that  this  omission  upon  the  part  of  the  chairmen,  whether  originating 
in  fraud  or  in  ignorant  neghct  of  legal  duty,  destroyed  the  reliability 
of  the  oflicial  statements  by  those  »boards  of  the  result  of  the  election 
in  those  counties,  from  which  statements  the  board  of  State  canvasserB 
made  up  their  statement  of  the  result  of  the  election  in  the  fifth  Con- 
gressional district. 

Strictly  speaking,  there  is  no  competent  evidence  that  there  was  any 
such  omission  as  charged.  As  a  matter  of  fact,  however,  it  appears 
that  the  election  officers  in  some  counties  of  the  State,  having  construed 
the  requirements  to  forward  the  returns  and  poll-list  "  to  the  governor 
and  secretary  of  state,"  as  imposing  the  duty  of  sending  one  set  of  those 
papers  to  the  governor  and  a  duplicate  set  to  the  secretary  of  state, 
the  latter  officer,  just  prior  to  the  election,  issued  a  circular  to  the  effect 
that  it  was  not  necessary  to  send  poll-lists  to  the  secretary  of  state 
which  instruction,  it  would  seem,  was  understood  by  the  chairmen  of 
the  boards  of  canvassers  in  the  three  counties  named  as  dispensing  with 
the  necessity  of  sending  up  such  papers  at  all. 

If  it  be  conceded,  however,  that  these  papers  were  not  sent  up  i'vom 


SMALLS    VS.    TILLMAN.  .  489 

the  three  couuties  in  question,  as  directed  by  law,  and  pven  if  it  were 
held — though  tliere  is  no  shadow  of  testimony  to  that  effect — that  the 
omission  was  iciUful,  theie  are  two  pro[)ositions  which,  to  the  under- 
signed, appear  to  be  too  clear  to  admit  of  an  intelligent  difference  of 
oi)iniou  as  to  them,  viz:  (a)  That  such  omission  cannot  be  held  to  have 
the  effect  of  invalidating  the  reliability  of  the  official  statements  of  the 
result  of  the  election  made  by  the  county  boards  of  canvassers,  as  con- 
tended by  the  contestant ;  and,  [b)  That  such  omission  could  not  pos- 
sibly have  in  any  manner  affected  the  rights  of  the  contestant,  for  the 
reason  that  the  State  board  of  canvassers  could  not  have  considered 
those  papers  had  they  been  sent  up  as  directed. 

(«)  By  reference  to  section  4  of  the  amendment  to  the  election  law 
of  South  Carolina,  of  March  17, 1872,  quoted  above,  it  will  be  seen  that 
the  duty  of  forwarding  the  papers  in  question  is  imposed,  not  upon  the 
county  board  of  canvassers,  but,  after  its  final  adjournment^  upon  the  in- 
dividual who  had  been  its  chairman.  Upon  what  possible  principle  can 
it  be  said  that  any  omission  of  duty,  whether  fraudulent  or  merely  neg- 
ligent, upon  the  part  of  such  individual,  after  the  board  of  which  he 
was  chairman  has  finally  adjourned  and  gone  out  of  existence,  shall  de- 
stroy, or  in  any  manner  invalidate  the  reliability  or  legal  effect  of  the 
concurrent,  unanimous,  official  act  of  the  entire  board,  Republican  and 
Democratic  members  alike  ? 

{!))  The  papers  in  question,  it  will  be  further  observed,  are  directed 
to  be  forwarded,  not  to  the  State  board  of  canvassers,  but  to  the  gov- 
ernor and  secretary  of  state.  The  governor  is  not  even  a  member  of 
the  State  board ;  and,  although  the  secretary  of  state  is,  yet  not  only 
is  there  no  direction  that  the  ])apers  in  question  shall  be  submitted  to, 
or  considered  by,  that  board,  but,  as  will  be  seen  by  reference  to  the 
law  prescribing  the  duties  of  the  State  board,  quoted  above,  they  are 
expressly  and  specifically  required  to  make  up  their  statement  "  upon 
the  certified  copies  of  the  statements  made  by  the  board  of  county  canvass- 
ers,'^ und  upon  those  statements  it  is  enacted  that  they  shall  "proceed 
to  determine  and  declare  what  persons  have  been,  by  the  greatest  num- 
ber of  votes,  duly  elected  to  such  offices,"  &c. 

Upon  these  grounds,  therefore,  we  hold  it  to  be  clear,  beyond  the 
possibility  of  an  intelligent  difference  of  opinion,  that  the  omission  of 
the  three  individuals  who  had  served  as  chairmen  of  the  boards  of  can- 
vassers in  the  three  counties  of  Edgefield,  Colleton,  and  Barnwell  to 
send  the  returns  and  poll-lists  from  those  counties,  after  the  adjourn- 
ment of  their  resj^ective  boards,  to  the  governor  and  secretary  of  state, 
is  not  even  an  element  to  be  considered  in  this  case.  It  has  absolutely 
no  possible  bearing,  either  one  way  or  the  other,  upon  the  rights  of 
either  of  the  parties  to  this  contest.  The  sending  of  them  up  could 
not  have  benefited  either,  nor  can  the  omission  to  do  so  justly  injure 
either. 

IV.  The  fourth  and  remaining  charge  is,  that  throughout  all  the 
counties  of  the  fifth  Congressional  district  of  South  Carolina,  except  the 
county  of  Beaufort,  violence  and  intimidation  were  resorted  to  by  the 
friends  of  the  contestee  to  such  an  extent  as  to  prevent  large  numbers 
of  contestant's  adherents  from  casting  their  votes  for  him.  And  the 
seven  hundred  closely  printed  pages  of  the  record  are  mainly  filled 
with  the  testimony  of  witnesses  produced  to  prove  and  disprove  this 
charge. 

In  the  first  place,  it  is  to  be  observed  that  while,  if  proved,  this  charge 
ought  to  unseat  the  contestee,  it  can  have  no  tendency  to  seat  the  con- 
testant.   Xo  principle  in  the  law  of  elections  can  be  regarded  as  better 


490  DIGEST    OF   ELECTION   CASES. 

settled  than  that  no  candidate  can  be  held  to  have  been  elected  to  office 
by  the  votes  which,  whatever  the  cause,  were  not  in  fact  cast  for  him. 

In  the  second  place,  without  being  understood  as  casting  any  asper- 
sion or  reflections  upon  the  report  of  our  colleagues,  the  majority  of  the 
subcommittee  charged  with  the  consideration  of  this  case,  it  is  never- 
theless our  duty  to  remark  that  if  issues  of  fact  as  to  the  history  and 
conduct  of  an  election  at  each  of  the  precincts  in  five  entire  counties 
are  to  be  determined  by  setting  forth  and  considering  only  such  parts 
of  the  testimony  of  the  witnesses  of  one  of  the  parties  as  make  most 
strongly  for  him,  excluding  wholly  the  testimony  adduced  upon  the 
other  side,  and  even  ignoring  such  modifications  and  retractions  as  have 
been  made  upon  cross-examination  by  the  very  witnesses  themselves 
whose  testimony  is  quoted,  as  upon  the  most  superficial  examination 
will  be  found  to  have  been  done  in  the  preparation  of  the  majority  re- 
port, then  the  so-called  adjudication  of  contested-election  cases  will 
indeed  have  become  a  mockery. 

For  the  purpose  of  illustration,  again  disclaiming  any  reflection  upon 
our  colleagues  who  have  made  that  report,  we  would  cite  the  case  of 
Low  Town  Mills,  in  Aiken  County.  The  majority  report  quotes  from  the 
depositions  of  contestant's  witnesses,  Spells  and  Washington,  so  much  of 
their  testimony  as  represents  two  hundred  Democrats,  in  red  shirts,  as 
riding  up  to  the  polls,  firiog  into  the  Eepublican  voters,  and  driving 
about  one  hundred  of  them  into  a  swamp ;  but  wholly  ignores  the  fact 
that  on  cross-examination,  at  page  133  of  the  Eecord,  Washington  re- 
duces the  two  hundred  Democrats  in  red  shirts  to  two,  and  at  page  134 
admits  there  was  not  a  swamp  within  four  or  five  miles  of  the  place.  It 
also  wholly  omits  to  notice  that  the  testimony  of  both  these  witnesses 
was  answered  and  refuted  in  every  particular  by  three  iutelligent  and 
reputable  gentlemen,  at  pp.  258  to  262  of  the  Record ;  that  the  character 
of  Washington  for  truth  and  veracity  was  successfully  impeached  at  pp. 
258,  260,  and  261-'2,  and  no  attempt  to  defend  it  made  by  contestant  in 
rebuttal ;  and  that  not  a  single  man  who  was  beaten,  shot  at,  run  into  a 
swamp,  who  did  not  vote,  was  threatened,  interfered  with,  intimidated, 
or  in  any  other  manner  maltreated,  was  produced,  or  the  failure  to  pro- 
duce in  any  manner  accounted  for. 

Where  it  is  alleged  that  a  large  number  of  persons  have  been  deterred  from  vot- 
ing by  violence  and  intimidation,  the  testimony  of  those  persons,  or  some  of  them, 
should  be  produced.  The  opinions  and  impressions  of  others  are  not  sufficient.  (Mc- 
Crary,  p.  327,  sec.  431.) 

As  another  illustration,  the  neighboring  precinct  of  Silverton  may  be 
taken.  So  much  of  the  testimony  of  D.  Bing,  contestant's  only  witness 
as  to  this  precinct,  as,  taken  alone,  would  be  understood  as  indicating 
that  the  whites  drove  the  blacks  from  the  polls  at  their  precinct,  and 
that  the  witness  could  not  vote  there,  will  be  found  inserted  in  the  ma- 
jority report  at  page  29  ;  but  the  admissions  of  this  same  witness,  at  pp. 
131-'2  of  the  Record,  that  he  merely  rode  by  Silverton  without  stopping, 
and  that  he  saw  only  one  colored  man  there,  and  that  one  a  Democrat, 
is  wholly  omitted,  as  is  also  the  fact  that  no  man  who  was  intimidated, 
drawn  away  from,  or  prevented  from  voting  at  this  precinct,  or  in  any 
other  manner  interfered  with,  is  either  produced  or  named.  And  yet,  at 
page  33  of  the  report,  it  will  be  found  that  the  entire  vote  of  this  pre- 
cinct for  the  contestee  is  thrown  out. 

So,  at  pp.  30  and  31  of  the  majority  report,  so  much  of  the  testimony 
of  contestant's  witnesses  is  inserted  as  would  tend  to  show,  if  taken  alone, 
that  the  Democrats  drove  the  Republicans  from  the  polls  at  Creed's  Store, 
in  the  same  county,  and  forced  the  Eei^ublican  supervisor  to  leave ;  bat 


SMALLS    VS.    TILLMAN.  491 

it  omits  to  say  tbat  this  testimony  is  circumstantially  refuted  at  pp. 
267-270,  with  no  attempt  upon  the  part  of  the  contestant  to  substantiate 
it  in  rebuttal,  as  also  that  the  very  witnesses  on  behalf  of  contestant, 
whose  testimony  is  quoted  in  the  report  admitted  on  cross-examination, 
at  pp.  74  and  183  of  the  Kecord,  that  all  the  colored  men  were  allowed 
to  vote  freelj'  as  they  desired  at  this  poll  except  one,  who  was  chal- 
lenged, and  who,  as  shown  at  pp.  267  and  269,  was  an  idiot.  And  yet, 
at  p.  33  of  the  report,  the  majority  for  contestee  at  this  precinct  is  like- 
wise thrown  out. 

So  as  to  Windsor  i^recinct,  in  the  same  county,  the  majority  report 
auotes  so  much  of  the  testimony  for  contestant  as  would  tend  to  show 
that  the  Republican  ticket  distributer  was  driven  away  from  the  polls; 
but  it  wholly  overlooks  the  facts  that,  at  pages  307-'8  of  the  Record,  it  is 
proven  by  the  testimony  of  the  trial-justice  for  that  community,  un- 
attacked  in  rebuttal,  that  the  ticket  distributer  got  into  an  altercation 
with  a  stranger  who  was  not  even  a  resident  of  the  State,  and  left  in 
a  passion,  taking  the  Republican  tickets  with  him,  although  urged  to 
leave  them,  after  which  the  trial-justice  offered  to  write  tickets  for  all 
who  desired  to  vote.  And  yet,  upon  this  uncontradicted  state  of  facts, 
contestee's  majority  at  this  precinct  also  is  thrown  out,  at  p.  33  of  the 
report. 

Again,  as  to  Page  and  Hankerson's  Store,  in  Aiken  County,  the  ma- 
jority rei)ort  quotes  the  testimony  of  one  Green,  tending  to  prove  that 
he  was  not  allowed  to  vote ;  that  there  was  shooting  at  the  polls,  and 
that  he  was  whipped  for  taking  down  the  names  of  voters;  but  it 
ignores  entirely  the  fact  that  the  alleged  whipping  is  not  claimed  to 
have  taken  place  until  after  Green  had  left  the  precinct,  and  that  the 
Republican  supervisor,  contestant's  only  other  witness  as  to  this  poll, 
testifies,  at  page  190  of  the  Record,  that  every  man  who  oifered  to  vote 
was  allowed  to  do  so  freely ;  as,  also,  that  the  uncontradicted  testimony 
of  contestee's  witnesses,  at  pp.  273-'6  and  278-'9  of  the  Record,  shows 
that  the  only  shooting  at  or  near  the  polls  that  day  was  between  two 
Democrats,  who  fired  at  each  other  in  a  purely  personal  altercation; 
that  no  one  was  deterred  from  voting  by  the  occurrence,  over  one  hun- 
dred Rei)ublican  votes  being  cast  just  after  it;  that  no  violence  was 
offered  Green  at  the  polls,  but  that  his  alleged  whipping  was  reported 
to  have  taken  place  after  he  had  gone  away,  at  some  point  on  the  road 
to  Aiken  Court-House,  and  that  the  Republican  supervisor  signed  the 
Democratic  supervisor's  report,  and  declared  it  had  been  the  fairest 
election  he  ever  saw. 

It  is  obviously  impossible,  within  the  compass  of  a  report  like  this, 
to  review  the  testimony  as  to  each  of  the  various  precincts  in  this  and 
the  four  other  counties  against  which  this  charge  of  violence  and  intimi- 
dation is  made.  The  foregoing  will  be  found  to  be  only  a  fair  specimen 
of  the  methods  of  consideration  which  have  led  to  the  conclusions  em- 
bodied in  the  majority  report  of  the  subcommittee.  In  the  brief  filed 
in  behalf  of  the  contestee  will  be  found  a  succinct  but  full  summary  of 
the  testimony  on  both  sides  as  to  each  precinct  in  each  of  the  counties, 
with  a  reference  to  the  pages  of  the  Record  at  which  all  the  depositions 
on  either  side  relating  to  each  precinct  are  contained;  and  to  this  sum- 
mary we  would  urgently  refer  the  members  of  this  committee  who  may 
desire  to  look  at  both  sides  of  the  question,  or  to  the  whole  of  contest- 
ant's own  side,  as  to  any  particular  precinct. 

There  are  two  precincts,  however,  viz,  Edgefield  and  Aiken  Court- 
Houses,  as  to  which  charges  of  violence  and  intimidation  are  made  so 
strenuously,  and  the  conclusions  of  the  majority  of  the  subcommittee 


492  DIGEST    OF    ELECTION    CASES. 

are,  in  the  opinion  of  the  undersigned,  so  far  from  being  sustained  by 
the  facts,  that  some  brief  review  of  them  will  be  here  indulged  in. 

EDGEFIELD  COURT-HOUSE. 

Under  the  heading  of  this  x^recinct,  at  p.  6  of  the  majority  report, 
Andrew  S.  Lee  is  made  to  say  that  the  commissioners  of  election  for 
Edgefield  County  were  all  Democrats.  As  a  matter  of  fact,  Lee  testifies 
that  he  himself  was  a  commissioner  of  election  for  that  county,  and  a 
Eepublican.  What  he  does  say,  at  p.  433  of  the  Eecord,  is,  that  all  the 
precinct  managers  of  election,  who  are  appointed  by  the  commissioners, 
were  Democrats.  But  he  adds,  at  p.  434,  what  is  omitted  from  the 
majority  report,  viz,  that  he  spoke  to  the  chairman  of  the  Republican 
county  executive  committee  about  suggesting  the  names  of  some  Repub- 
licans for  appointment  as  managers,  but  received  no  advice  from  him 
upon  that  point,  and  that  he  himself  knew  of  only  two  or  three  Repub- 
licans in  the  county  competent  to  act  in  that  capacity,  and  did  not  know 
that  they  would  serve.     (See  his  testimony  at  pp.  433-4  of  the  Record.) 

The  majority  report  further  quotes  the  testimony  of  this  witness  to 
show  that  the  county  board  of  canvassers  did  not  canvass  the  five  polls 
from  which  no  returns  were  made,  but  omits  that  portion  of  it  which 
shows  that  he,  the  Republican  member  of  that  board,  fully  concurred 
in  the  construction  of  the  law  which  denied  to  the  board  any  power  to 
do  so.  And  as  above  pointed  out,  there  is  not  a  particle  of  evidence 
tending  to  show  that  there  was  a  majority  for  contestant  at  any  one  of 
these  five  polls,  nor,  indeed,  that  a  single  vote  was  cast  for  him  at  four 
of  them. 

The  remaining  portions  of  the  majority  report  relating  to  Edgefield 
Court-House,  as  also  those  relating  to  Aiken  CourtHouse,  appear  to  have 
been  taken  bodily  from  the  contestant's  brief;  and  we  could  not,  per- 
haps, more  succinctly  or  fairly  put  the  committee  into  possession  of  the 
whole  facts,  as  proved  by  contestant's  own  witnesses  as  well  as  by  those 
of  contestee,  than  by  incorporating  into  this  report,  from  the  correspond- 
ing i)ortions  of  the  brief  filed  on  behalf  of  contestee,  the  following 
summary : 

Edgefield  Court-House. 

At  this  precinct  the  contestant's  testimony  is  to  the  effect  that,  on  the 
night  before  the  election,  armed  bodies  of  mounted  men  rode  through 
the  streets  of  the  village,  whose  red  shirts  could  be  seen  in  the  darkness 
by  the  flashes  of  their  pistols ;  that  an  armed  guard,  during  the  night, 
took  possession  of  the  court-house  building,  which  was  the  polling  place, 
and  kept  it;  that  the  Democrats  took  possession  of  the  court-house 
steps,  and  refused  to  allow  any  Republicans  access  to  the  ballot-box ; 
that  sentries  were  stationed  in  front  of  the  steps  under  the  command  of 
an  ofiicer  in  strange  and  peculiar  uniform,  who  ordered  the  Republicans 
back  whenever  they  attempted  to  approach  the  steps  ;  that  men  were 
stationed  in  neighboring  buildings,  with  arms  in  their  hands,  command- 
ing the  polling  place  for  the  purpose  of  intimidating  and  keeping  back 
Republican  voters ;  and  that  by  these  means  from  2,000  to  2,500  voters 
were  prevented  from  casting  their  votes  for  contestant.  It  is  further 
charged  that  the  Republican  supervisor  was  not  allowed  to  keep  a  poll- 
list,  and  that  the  polling  places  were  reduced  from  two  to  one  at  this 
precinct  in  order  to  deprive  Republicans  of  an  opportunity  to  vote;  and 
this,  we  believe,  summarizes  the  charges  made  on  behalf  of  contestant 
as  to  this  precinct. 


SMALLS    VS.    TILLMAN.  493 

The  testimony  on  behalf  of  the  contestee,  if  believed,  refutes  all  these 
ohn'oes,  and  shows  as  follows  :  That  the  Republican  leaders  conspired 
to  mass,  as  far  as  they  could,  their  entire  forces  at  this  and  one  or  two 
otlier  ]>recincts,  for  the  purpose  of  taking"  possession  of  the  ballot-box 
and  intiniidatinf!^  and  physically  overpowering  the  Democrats;  that  in 
])ursuance  of  this  scheme  they  took  possession  of  all  the  roads  leading 
to  the  village  the  night  before  the  election,  beleaguered  the  town,  and 
fired  upon  a  committee  of  citizens  sent  out  to  peaceably  inquire  the  object 
of  their  demonstration ;  that  on  the  morning  of  the  election  they  marched 
into  the  village  from  every  avenue  of  approach  to  it  in  compact  bodies, 
armed  partly  with  fire-arms,  but  mostly  with  large,  freshly-cut  clubs ; 
that,  having  consolidated  their  forces,  they  marched,  with  yells  and 
uplifted  clubs,  up  to  the  very  steps  of  the  court-house  in  which  the  citi- 
zens, after  their  committee  had  been  fired  upon  the  night  previous,  had 
taken  the  precaution  to  place  about  fifty  men  ;  that  these  men  holding 
their  position  upon  the  steps,  and  a  peace  officer  having  ordered  a  de- 
tachment of  a  company  of  the  State  militia  to  take  position,  with  their 
arms,  in  a  neighboring  building,  where  they  could  be  seen,  the  massed 
forces  of  the  Rei)ublicans,  after  a  time,  fell  back  a  short  distance,  and 
were  then  invited  and  urged  to  vote  i)y  threes,  alternately,  with  the 
Democrats,  but  with  few  exceptions  they  refused  to  vote  at  all  unless 
they  could  do  so  en  masse,  and  about  11  o'clock  a.  m.  marched  away  in 
bodies,  as  they  had  come. 

With  this  preliminary  statement  of  the  facts  alleged  upon  the  one  side 
and  the  other,  we  proceed  to  examine  the  testimony  with  especial  refer- 
ence to  the  consistency  and  credibility  of  the  icitnesses,  since,  where  their 
statements  are  so  hopelessly  in  conflict,  it  is  simply  a  question  of  veracity 
between  them. 

And,  first,  as  to  the  armed  bodies  of  Democrats  alleged  to  have  been 
patrolling  the  streets  of  the  village,  and  illuminating  their  uniforms  by 
the  flashes  of  their  pistols,  Paris  Simpkins,  who,  with  one  Lawrence 
Cain,  is  the  principal  witness  as  to  this  precinct,  testifies  as  to  this  (at 
p.  223)  as  follows  : 

Q.  Were  you  present  in  the  town  of  Edgefield  on  the  night  before  the  last  eleceion  T — 
A.  I  was. 

Q.  Did  anything  unusual  occur  during  the  night  ? — A.  Something  certainly  very  unu- 
sual for  this  community ;  there  was  quite  a  number  of  armed  men  iu  the  town  of  Edge- 
field, who  paraded  up  and  down  the  streets,  all  mounted,  firing  oft'  their  pistols,  and 
yelling  in  the  most  hideous  manner.  I  was  on  the  street  myself,  and  desired  to  get 
back  to  my  home,  but  was  afraid  to  go  back  on  the  front  street,  as  I  came,  for  fear 
that  I  might  be  shot ;  not  that  I  had  anything  to  be  shot  for,  but  that,  knowing  I 
was  regarded  as  a  leader  of  the  Republicans  m  the  county,  it  was  because  of  tbis 
position  that  I  was  apprehensive  of  danger. 

Q.  How  long  did  this  firing  continue  f — A.  It  continued  almoat  incesfantly  for  five  or  ten 
minutes. 

Q.  About  how  large  was  this  body  ? — A.  /  would  judge  there  were  between  three  and  four 
hundred  men. 

Q.  Was  it  before  or  after  dark? — A.  Just  after  dark. 

Q.  Could  you  distinguish  their  faces  or  clothing  ? — I  could  not  their  faces ;  but  could. 
see  by  the  flashing  of  the  pistols  that  some  had  on  red  shirts. 

Andrew  J.  Lee,  Republican  commissioner  of  elections,  who  was  in  the 
village  the  night  before  the  election,  testifies  (at  p.  212)  as  follows : 

Q.  Did  you  see  any  mounted  men  ride  through  or  around  the  town  that  night  ? — A. 
I  did  see  a  number  of  mounted  men,  iu  a  body,  riding  through  the  town. 

Q.  Did  you  hear  any  firing  that  night,  much  or  little  ? — A.  I  heard  several  shots  fired. 

Korman  Youugblood,  another  witness  for  contestant  (at  p.  232)  tes- 
tifies : 


494  DIGEST    OF    ELECTION    CASES. 

Q.  Do  you  know  anything  of  a  body  of  armed  and  mounted  men  riding  through  the 
town  the  night  before  the  election  ? — A.  I  saw  a  crowd  of  mounted  men  ride  Through 
the  town,  but  coukl  not  see  if  they  were  armed  or  not.  About  four  o'clock  of  the  same 
evening  I  met  another  crowd  going  away  from  the  town  ;  these  men  were  mounted, 
and  I  saw  several  pistols  under  their  coats  as  they  were  going  on,  and  some  hanging 
on  the' saddles;  they  returned  to  town  about  a  half  hour  before  sunset. 

Q.  How  were  these  men  dressed  ? — A.  They  had  on  red  shirts,  many  of  them,  as 
much  as  I  could  see  in  the  night ;  those  in  the  day  all  had  on  red  shirts  that  I  saw. 

Q.  How  many  were  in  the  party  leaving  town  f — A.  Sixteen  of  them  I  met. 

Q.  How  many  in  the  party  after  dark  ? — A.  About  the  same  numbe)'. 

Could  Simpkins  have  honestly  mistaken  sixteen  men  and  "  several 
shots  "  for  three  or  four  hundred  men,  firing  incessantly  for  fire  or  ten 
minutes  ? 

The  following  is  the  testimony  as  to  this  matter  of  E.  S.  Anderson, 
one  of  the  managers  of  election  (at  p.  503) : 

Cross-examination  by  P.  Simkins,  counsel  for  contestant : 
Q.  Were  you  in  the  village  of  Edgefield  on  the  night  previous  to  the  election  ? — A. 

I  was. 
Q.  Did  there  not  come  into  town  in  the  early  part  of  the  night  previous  to  the  el'^c- 

tion  a  large  body  of  Democrats,  mounted  and  armed,  uniformed  in  red  shirts,  and 

{laraded  through  the  village,  yelling  and  firing  off  their  pistols  ? — A.  I  did  not  see  any 
arge  body ;  I  saw  a  small  squad  come  in  on  horseback.  They  rode  around  the  park, 
and  some  of  them  seemed  to  be  lively,  and  fired  one  or  two  shots;  suppose  that  wa* 
done  by  some  man  who  was  drunk.     I  saw  no  arms. 

Whereupon  Simpkins  became  intimidated. 

As  to  the  officer  in  strange  uniform  in  command  of  the  alleged  Demo- 
cratic guard  in  front  of  the  court-house  steps,  Simpkins  (at  p.  223) 
testifies  as  follows : 

There  appeared  to  be  an  imaginary  line  drawn  just  in  front  of  the  court-hoTise down 
on  the  ground;  there  were  Democrats  who  walked  up  and  down  this  line,  and  as  the 
Republicans  would  come  towards  the  court-house  thej'  were  told  just  hei'e  not  to  go 
any  further.  I  noticed  this  matter  with  peculiar  interest ;  there  appeared  to  be  an 
officer  in  charge  of  this  line;  the  officer,  who  I  allude  to,  was  dressed  in  a  very  pecu- 
liar suit  of  clothes.     I  have  no  recollection  of  ever  seeing  such  a  suit  before. 

Norman  Youngblood  (at  p.  233)  thus  describes  this  very  peculiar 
officer : 

A  man  with  a  calico  suit  on  was  in  front  of  the  steps,  and  whenever  a  colored  man 
would  try  to  vote  he  would  tell  him  to  stand  back ;  he  could  not  vote  yet.  The  white 
people  pushed  through  the  crowd  and  got  in  to  the  poll. 

The  real  character  and  subsequent  history  of  this  "officer"  are  given 
in  the  following  extract  from  the  deposition  of  C.  L.  Woodward  (at  p. 
610),  and  that  of  D.  E.  Durisoe  (at  p.  530) : 

Q.  Laurence  Cain,  Paris  Simpkins,  and  Norman  Youngblood,  in  their  testimony, 
state  that  there  was  a  man  dressed  in  a  peculiar  costume,  who  seemed  to  be  a  man  in 
authority,  walking  a  line  as  a  sentinel  in  front  of  the  court-house.  Will  you  please 
state  how  that  man  was  dressed,  and  if  he  was  not  drunk,  and  acted  without  author- 
ity?— A.  I  have  stated  that  there  were  several  men  in  the  space  intervening  between 
the  court-house  steps  and  the  front  line  of  the  colored  people.  I  recollect  that  one  of 
these  men  was  dressed  in  a  fantastic  clownish  costume,  who  was  no  doubt  dressed  in 
that  manner  under  a  spirit  of  fun.  He  was,  so  far  as  I  know,  m  ithout  authority,  and 
acted  independently.  There  was  no  organization  of  the  white  people  who  were  upon 
the  court-house  steps,  but  they  were  in  apparent  danger,  and  generally  adopted  the 
suggestions  of  the  men  of  influence  among  them,  and  those  of  the  State  constables.  *"  * 

Q.  L.  Cain,  P.  Simpkins,  testifies  to  a  line  being  drawn  in  front  of  the  court-house, 
and  that  a  man  dressed  in  fantastic  costume,  who  seemed  to  be  in  authority,  told  the 
colored  people  to  stand  back;  on  the  contrary,  was  not  that  man  acting  without  any 
authority,  and  was  he  not  under  the  influence  of  liquor  ? — A.  It  was  impossible  for 
any  line  to  be  drawn  and  observed  for  any  length  of  time,  for  the  colored  people  most 
of  the  time  were  present,  were  standing  up  near  and  in  close  proximity  to  the  court- 
house steps;  so  close  indeed  that  there  would  have  been  no  room  for  a  line  to  be 
drawn  ;  the  party  to  whom  allusion  was  made  as  being  dressed  in  a  fantastic  suit,, 
walkitig  to  and  fro  through  the  crowd,  was  without  authority  in  his  club  and  with- 


SMALLS   VS.    TILLMAN.  495 

out  authority  from  the  party,  and  at  the  time  was  strongly  under  the  influence  of 
■whisky,  and  hefore  12  o'clock  in  the  day  lying  drunk  by  the  park  fence. 

The  charge  of  Jesse  Jones,  the  Eepublican  supervisor,  that  he  was  not 
allowed  to  keep  a  poll-list  is  unsupported  hy  any  testimony  except  his 
own,  and  that  testimony  is  as  follows : 

Q.  Did  you  keep  a  poll-list? — A.  No,  sir. 

Q.  Why  not  ? — A.  I  did  not  think  it  was  safe  for  me  to  do  so. 

Q.  Why  did  you  think  it  unsafe  ? — A.  Because  if  they  saw  me  keeping  a  poll-list,  I 
don't  think  they  would  have  allowed  me  to  stay  there  at  all,  as  I  was  told  ly  Demo- 
crats that  if  I  attempted  to  make  a  report  I  would  not  he  allowed  to  act  as  supervisor 
(pages  245-6). 

»  »  *  #  #  »  * 

Q.  You  say  you  were  told  if  you  kept  a  poll-list  you  would  not  be  allowed  to  act  as- 
supervisor;  who  told  you  so  ? — A.  I  decline  to  answer  that,  but  he  is  a  Democrat. 

Q.  Did  either  one  of  the  managers  tell  yon  so? — A.  They  did  not. 

Q.  Did  any  Democrat  tell  you  so  who  had  authority  at  the  box  t — A.  No,  sir  (page 
249). 

Here,  the  Democrats  who  obstructed  or  intimidated  the  supervisor 
is  reduced  to  one  Democrat,  and  that  one  nameless  and  unidentified. 
Could  any  member  of  Congress  retain  his  seat,  if,  to  do  so,  he  was  required 
to  disprove  such  testimony  as  this? 

This  same  witness,  however,  does  rebnt  any  presumption  which  might 
be  entertained,  if  his  story  was  believed,  that  the  object  had,  in  prevent- 
ing him  from  keeping  a  poll-list,  was  a  fraudulent  one  in  the  interest  of 
contestee;  as  witness  the  following  question  and  answer  at  p.  250: 

Q.  You  say  you  kept  no  poll-list,  but  the  votes  in  the  box  exceeded  the  names  on 
the  poll-list  by  15 ;  how  do  you  know  that  ? — A.  /  kneio  that  the  poll-list  kept  hy  the 
Democratic  clerk  was  correct.  I  know  it  by  lool#ng  at  the  poll-list  after  the  poll  wa& 
closed,  and  we  were  about  to  proceed  to  count. 

With  reference  to  the  charge  that  the  polling  places  were  reduced 
from  two  to  one  after  the  Democrats  gained  control  of  the  State  in  1876, 
for  the  i^urpose  of  depriving  the  Republicans  of  an  opportunity  to  vote, 
it  would  no  doubt  be  answer  suflticient  to  say  that  the  legislature  of  a 
State  will  scarcely  be  adjudged  guilty  of  such  an  abuse  of  its  powers, 
by  either  the  national  House  of  Representatives  or  its  committee,  at 
least  upon  the  testimony  of  such  witnesses  as  those  who  make  the 
charge  in  this  instance.  The  testimony  of  O.  Sheppard,  at  p.  500, 
and  that  of  S.  S.  Tompkins,  at  p.  506,  show,  however,  that  since  at 
least  as  far  back  as  1841,  there  never  has  been  but  one  box  at  this  pre- 
cinct, except  for  a  short  time  while  the  Republican  party  had  control  of 
the  State,  when  two  were  established;  that  this,  besides  being  unneces- 
sary, was  found  to  lead  to,  and  facilitate  repeating,  and  was,  for  that 
reason,  abolished.  (See,  also,  pp.  526-7.)  The  testimony  shows  that 
the  Democrats  increased  the  number  of  precincts  in  the  county.  (See 
p.  530.) 

We  come,  now,  to  the  main  and  decisive  question  as  to  this  precinct, 
viz :  Were  the  Republicans  prevented  from  voting  by  violence  and  in- 
timidation upon  the  part  of  the  Democrats ;  or,  were  the  Democrats 
acting  i)urely  in  self-defense  and  for  the  preservation  of  peace  and  order^ 
and  was  the  refusal  of  the  Republicans  to  vote  a  preconcerted  deter- 
mination upon  their  part  in  case  they  failed  in  a  plan  to  overawe  and 
Intimidate  their  political  opponents  and  capture  the  polls  ? 

On  the  part  of  the  coiitestee  it  is  claimed,  and  we  think  the  testimony 
and  the  circumstances  demonstrate  the  fact,  that  the  Republican  leaders 
bad  preconcerted  a  plan  to  mass  their  followers  from  all  parts  of  the 
county  at  this  place,  intimidate  the  Democrats  of  both  races  by  a  show 
of  force  and  violence,  and  capture  and  hold  the  polls ;  and  if  they  failed 


4'j6  digest  of  election  cases. 

ia  this,  then  to  refraiu,iu  a  body,  from  votiiio-,  and  disperse  early  enough 
in  tlie  day  to  reach  the  polls  at  other  places. 

That  the  Republicans  were  massed  at  this  precinct  is  shown  by  con- 
testant's own  witnesses.  The  largest  vote  ever  case  there  was  about 
1,200,  Democrats  and  Republicans  both  included  (j).  239). 

On  the  2d  day  of  November,  1880,  the  number  of  colored  Republic- 
ans at  Edgefield  Court-House  is  stated  by  their  leaders,  Cain,  Simp- 
kins,  and  others,  to  have  been  from  2,000  to  2,500.  And  the  record 
shows  that  they  came  from  all  parts  of  the  county,  although  there  were 
nineteen  other  precincts  in  it ;  brought  their  provisions  in  haversacks, 
and  camped  about  the  village  on  every  road  that  led  to  it  the  night  be- 
fore.    These  facts  are  agreed  on  both  sides. 

Did  they  contemplate  force  and  violence  ?  The  following  extracts 
from  the  depositions  of  contestant's  own  witnesses  will  answer.  Paris 
Simpkins,  at  p.  226,  testifies  as  follows : 

Q.  Did  yon  see  the  Eeijublicaus  come  iu  Edgefield  village  ou  the  moruiug  of  the 
election  ?— A.  I  did. 

Q.  What  did  they  have  in  their  hands  ? — A.  Some  of  them  had  sticks  and  some  of 
them  did  not  have  anything. 

Q.  Describe  the  sticks  they  had  in  their  hands. — A.  The  sticks  that  I  saw  were  not 
all  alike  ;  some  were  the  size  of  ordinary  walking  sticks,  and  some  ofthehi  trej*e  ««- 
usHdlli/ large,  though  they  ivalked  with  them  as  icalking-sticks.  »  »  * 

Q.  Did  yon  st^e  any  sticks  in  the  hands  of  the  Republicans  on  the  day  of  election 
that  presented  the  appearance  of  clnbs  rather  than  walking  canes  ? — A.  I  can  only  say, 
in  reply  to  that  question,  as  I  have  said  before,  that  some  of  the  sticks  were  ordinary 
walking-sticks,  while  others  were  unusually  large  for  icalking-sticks. 

Q.  Did  you  see  a  half  dozen  Republicans  who  came  in  clubs  that  didnot  have  clubs 
in  their  hands  ? — A.  A  great  many  had  nothing  iu  their  hands  at  all. 

Q.  About  what  proportion? — A.  ^  near  as  I  can  approximate  it  I  would  say  about 
one-fourth. 

Q.  Had  no  clubs  in  their  hands  ? — A.  Yes,  sir. 

Three-fourths  then,  of  this  army  of  from  2,000  to  2,500  men  were 
armed  with  clubs. 

Norman  Youugblood,  another  of  contestant's  witnesses,  at  p.  234, 
testifies  : 

Q.  Did  you  see  any  Republicans  armed  that  day  ? — A.  Yes,  sir;  I  seen  some  of  them 
there. 

Q.  What  were  they  armed  with  ? — A.  The  best  quantity  had  sticks.  I  seen  two 
pistols  with  them,  but  I  don't  know  how  many  more. 

Wiley  Weaver,  another  of  contestant's  witnesses  (pp.  689-693),  testi- 
fies as  follows : 

Q.  Several  Democrats  have  testified  that  large  bodies  of  colored  men  came  to  the 
Edgefield  precinct  armed  with  heavy  sticks  or  clubs,  evidently  for  the  purpose  of 
taking  forcible  possession  of  the  i>olls  ;  will  you  state  what  the  object  of  the  colored 
men  was  in  coming  to  the  polls  in  bodies,  and  also  what  their  object  was  in  having 
these  sticks  alluded  to ;  and  was  it  the  object  to  take  forcible  possession  of  the  polls! 

(Objected  to  as  a  matter  of  opinion.) 

A.  The  object  of  our  crowd  was  that  the  Democratic  part}'  had  promised  to  be  at 
the  cross-roads  to  turn  us  back  ;  we  thought  that  by  coming  in  bodies  that  it  would 
prohibit  them  from  interrupting  us;  we  taken  the  sticks,  for  instance,  if  they  should 
undertake  to  run  over  us  we  would  have  something  to  protect  ourselves,  and  it  was 
not  the  object  to  take  forcible  iiossession  of  the  polls. 

They  were  not  "  walking-sticks,"  therefore,  evidently.    * . 
Under  cross-examination  this  threat  of  the  Democrats  to  turn  back 
the  Republicans  is  thus  explained  : 

Q.  You  say  the  Democrats  had  promised  to  be  at  the  cross-roads ;  had  they  prom- 
ised you  to  be  there  ? — A.  It  was  a  general  rumor  through  the  country  that  they  was 
to  meet  us  at  the  cross-roads  and  keep  us  back  from  the  polls. 

Q.  Have  you  been  all  over  the  county  lately  ? — A.  I  have  not  been  all  over  the 
.  county,  but  my  reasons  is  for  saying  they  promised  to  meet  us  at  the  cross-roads,  I 


SMALLS    VS.    TILLMAN.  497 

stood  carefully  and  beard  the  speech  of  ineu  over  here  at  the  academy.  They  said 
they  beat  ns  in  this  electioQ,  and  meet  us  at  every  cross-road. 

AgaJD,  at  p.  693  : 

Q.  You  say  yon  brought  with  you  150  men,  and  it  was  not  their  intention  to  take 
possession  of  the  polls.  Did  you  know  the  intention  of  each  and  every  one  of  that 
150  men  ? — A.  I  know  it  in  this  way,  thai  ihey  had  promised  to  he  governed  by  me,  and  I 
kneic  it  by  my  own  viind. 

Q.  You,  then,  don't  know  the  intention  of  each  and  every  one,  of  your  own  personal 
knowledge? — A.  I  don't  know  the  minds  of  them,  but  know  the  promises. 

With  these  reluctaut,  half-admitted  indications  of  contemplation  of 
and  preparation  for  violence  and  force,  coming  from  contestant's  own 
witnesses,  it  vronld,  perhaps,  naturally  be  expected  that  the  evidence 
of  it  will  be  rather  abundant  when  the  witnesses  on  the  other  side  are 
heard.    And  the  expectation  is  fully  realized. 

The  following  is  from  the  deposition  of  C.  L.  Woodward,  a  lawyer 
and  citizen  of  Edgefield.     (See  pp.  508-13  :) 

Q.  What  time  did  you  arrive  at  the  polling  precinct  on  the  morning  of  the  election, 
and  state  what  occurred  during  the  day  and  after  that  time  ? — A.  1  was  awakened 
about  one  o'clock  the  night  preceding  the  election  by  M.  C.  Butler,  who  had  just  re- 
turned in  a  buggy  from  Newbury  Court  House,  who  informed  me  as  he  passed  Huiet's 
Cross-Roads  that  there  was  a  crowd  of  negroes  assembled  there,  which  he  estimated 
to  be  five  hundred  to  one  thousand ;  that  I  had  better  come  down  to  the  village  aud 
apprise  the  men  here  of  the  fact.  I  came  on  down  and  found  a  few  men  in  one  of 
the  law  offices  here,  and  a  few  in  the  court-house.  I  went  around  to  different  stores 
and  houses  in  the  village  and  aroused  the  men  who  were  sleeping  in  them.  For  sev- 
eral days  prior  to  the  election  there  had  been  rumors  about  the  arming  of  the  negroes; 
that  pistols  had  been  shipped  to  this  county ;  and  the  information  of  the  assembling 
of  the  crowd  at  Huiet's  Cross-Roads,  at  that  time  of  night,  caused  apprehension 
that  an  attack  was  contemplated  upon  the  village.  After  waking  up  these  men,  we 
all  assembled  in  the  court-house  ;  I  suppose  from  thirty  to  fifty.  We  did  nothing  for 
one  or  two  hours ;  not  liking  to  be  without  information  of  the  movementsof  the  crowd 
of  negroes  I  have  referred  to,  I  had  the  meeting  called  to  order,  and  suggested  that 
four  men  be  appointed  to  go  out  and  ascertain,  if  possible,  the  intention  of  the  crowd 
assembled  at  Huiet's  Cross-Roads;.  Mr.  Corley,  Mr.  Mitchell,  Mr.  Denny,  and  myself 
were  appointed,  aud  we  rode  out  in  the  direction  of  Huiet's  Cross  Roads.  When  we 
got  within  two  hundred  yards  of  the  cross-roads  we  met  seven  or  eight  negroes;  we 
stopped  and  questioned  them  ;  they  pretended  to  have  no  knowledge  of  the  meeting, 
but  their  answers  were  not  satisfactory.  Our  attention  was  then  attracted  by  a  camp- 
fire  in  the  woods  about  two  hundred  yards  to  the  left ;  at  tbe  same  time  we  heard  noisy 
demonstrations;  I  proposed  to  the  party  to  ride  up  to  the  meeting  peaceably,  not 
apprehending  that  we  would  be  attacked  without  warning.  As  we  approached  the 
meeting  we  heard  noisy  yells  aud  cries,  as  if  they  were  being  inflamed  by  the  speaker 
who  was  haranguing  them.  We  approached  the  place  of  meeting  by  a  road  leading 
oft'  from  main  road  in  that  direction ;  we  had  procdeeed  about  twenty-five  yards  on 

this  road  when  we  heard  the  command,  "Halt,  God  d n  you,  halt!"     We  halted  ; 

and  a  few  paces  in  front  of  us  we  saw  a  line  of  men  elbow  to  elbow  across  the  road, 
or  about  that  close.  The  night  was  dark,  but  the  outlines  of  the  men  were  percepti- 
ble; in  an  instant  a  number  of  pistols  fired,  as  we  supposed,  at  us.  We  turned  and 
dashed  back  to  the  main  road  ;  the  firing  of  the  i)istols  still  continued.  This  line  of 
men  was  apparently  about  one  hundred  yards  from  the  main  body  in  the  woods;  the 
meeting,  in  a  moment,  became  a  perfect  bedlam  of  noises  ;  I  heard  curses  and  threat- 
ening speeches  very  loud.  We  sent  one  of  our  number  in  advance  of  us  back  to  the 
village,  and  came  on  back  ourselves.     *     »     * 

Willis  Griffin,  Daniel  Brunson,  and  myself  then  road  out  to  the  house  of  Lawrence 
Cain,  who  was  the  leader  of  the  negroes  of  the  county,  and  also  the  chairman  of  the 
Republican  party,  to  see  if  we  could  ascertain  from  him  the  meaning  or  object  of  the 
demonstration  out  at  Huiet's  Cross-Roads.  Upon  arriving  at  his  house  we  called  to 
him,  and,  after  making  ourselves  known,  he  came  out ;  he  pretended  ignorance  of  the 
meeting  ;  we  told  him  that  this  night  attack  by  armed  men  barricading  public  roads 
upon  men  riding  quietly  along  the  road  had  caused,  and  would  cause,  great  excite- 
ment among  the  white  people ;  that  from  what  we  had  experienced  that  night  and  the 
rumors  we  had  heard  during  the  few  days  before,  we  feared  that  the  negroes  intended 
to  precipitate  a  disturbance  on  the  day  of  election  ;  we  told  him  that  knowing  his  in- 
fluence amongst  the  race  we  had  come  to  him  in  the  interest  of  peace  ;  that  he  had 
better  send  word  to  this  meeting  at  cross-roads,  and  that  he  had  better  advise  the 

H.  Mis.  35 32 


498  DIGEST    OF    ELECTION    CASES. 

negroes  generally  not  to  come  into  the  village  the  next  morning  in  a  tnrbnlent  and 
threatening  manner,  but  that  if  they  came  in  in  a  quiet,  peaceable  manner,  we  did  not 
apprehend  any  trouble.  He  pretended  to  us  that  he  was  ignorant  not  only  of  the 
meeting  near  Hniet's  Cross-Roads,  but  that  any  of  the  colored  people  except  those  of 
the  immediate  vicinity  and  those  in  the  neighborhood  of  Antioch  were  coming  to  the 
village  to  vote.  We  then  went  on  to  the  village  (I  think  two  of  the  parties  were 
State  constables,  appointed  to  keep  peace  on  the  day  of  the  election);  by  this  time  it 
■was  about  daybreak ;  about  or  before  sunrise  a  crowd  of  colored  people,  about  five 
hundred  strong,  I  would  jndge,  came  marching  into  the  village  in  a  column  about 
eight  abreast,  yelling  and  flourishing  immense  clubs,  with  which  it  seemed  to  me 
everj-  one  of  them  was  armed;  a  number  of  white  men  were  on  the  court-house  steps, 
and  those  who  were  in  the  vicinity  quickly  assembled  there;  the  colored  men  marched 
within  ten  or  fifteen  paces  of  the  court-house  steps ;  in  a  few  minutes  another  crowd, 
not  quite  so  large,  came  up  from  the  same  direction  ;  they  also  were  all  armed  with 
immense  clubs,  which  they  flourished  as  they  advanced,  at  the  same  time  yelling 
threateningly;  in  the  course  of  one-half  an  hour  the  crowd  of  colored  people  in  front 
of  the  polling  place  had  increased  until  it  was  variously  estimated  between  fifteen 
hundred  and  two  thousand  ;  these  men  all  came  in  the  manner  of  the  first  crowd,  and 
came  in  by  every  road  leading  to  the  village;  all  were  armed  with  clubs;  there  were 
about  one  hundred  white  men  assembled  on  the  steps,  and  during  this  time  about 
twenty  or  twenty-five  more  had  come  up. 

The  colored  people  by  this  time  were  all  massed  together  on  the  square  to  the  left 
of  the  park  facing  from  the  court-house,  and  the  frout  line  was  within  a  very  short 
distance  of  the  steps.  A  ne^ro  with  a  fur  cap  on,  who  I  was  told  afterwards  was  Mose 
Morton,  placed  himself  at  the  head  of  this  line,  mounted,  and,  with  him  at  the  head, 
the  whole  mass  marched  to  within  five  paces  of  the  court-house  steps.  There  were  a 
few  white  men  in  the  intervening  space  ;  if  I  recollect  correctly,  with  one  or  two  ex- 
ceptions they  were  State  constables.  About  this  time  a  crowd  divided  from  the  rear 
and  marched  around  in  a  disorderly  column  of  two  or  three  abreast  to  the  right  of  tho 
park  (as  we  faced  them),  and  advanced  up  within  a  few  feet  of  the  jail  yard,  and  the 
line  was  faced  about  towards  the  steps,  and  everything  indicated  that  an  attack  was 
to  be  made  upon  the  whites  upon  the  steps,  and  it  would  without  doubt  have  oc- 
curred, in  my  opinion,  and  a  bloody  riot  wonld  have  been  precipitated,  had  it  not  been 
for  the  careful  conduct  but  determined  attitude  of  the  white  men  upou  the  steps,  the 
prompt  and  careful  management  of,  I  think,  a  half  a  dozen  State  constables,  and 
the  conservatiA'e  influence  of  a  number  of  men,  composed  principally  of  the  militia 
company  of  the  village,  who  had  position  in  the  Masonic  Hall  overlooking  the  public 
square.  The  crowd  of  colored  men  finally  became  convinced  that  their  efforts  to  in- 
timidate the  white  men  had  failed,  and  in  a  short  while  a  large  number  of  them  with- 
drew in  a  body  and  marched  out  of  the  village  by  the  Columbia  road,  and  by  this  time 
the  hostile  attitude  of  the  paitieshad  become  relaxed  and  the  voting  proceeded.  The 
colored  men  were  invited  generally  and  individually  to  come  forward  and  vote. 
Among  others,  I  went  ont  through  them  and  told  them  that  they  could  not  come  here 
in  the  attitude  which  they  had  without  causing  apprehension  upon  the  part  of  the 
white  people  (I  addressed  myself  to  individuals);  but  matters  now  seemed  to  be  quiet, 
and  that  they  would  all  have  time  to  vote.  Most  of  them  sullenly  refused,  as  if  act- 
ing under  orders  from  a  common  source,  that  if  they  could  not  advance  to  the  polls  in 
a  solid  mass  and  have  undisturbed  possession  of  the  polling  place  they  should  not 
vote  at  all.     *    *     * 

Q.  Describe  the  clubs  you  speak  of  asbeiug  in  the  hands  of  the  colored  people  that 
day. — A.  Most  of  them  were  of  immense  size,  and  were  very  formidable  weapons ; 
they  were  apparently  freshly  cut  from  the  woods  for  the  purpose. 

Q.  Were  not  some  of  these  clubs  too  short  for  walking-sticks  and  swung  to  their 
wrists  by  strings  ? — A.  Thej^  were,  a  number  of  them. 

For  further  testimony  as  to  the  violent  and  threatening  entry  of  the 
Kepublicans  into  the  village  of  Edgefield,  and  their  hostile  demonstra- 
tions at  the  polling  place,  seethe  depositions  ofO.  Sheppard  (pp.  497- 
601),  E.  S.  Anderson  (pp,  502-5),  S.  S.  Tompkins  (pp.  505-7),  L.  Charl- 
ton (pp.  513-7),  Lewis  Jones,  sr.,  (pp.  517-20),  and  D.  R.  Durisoe  (pp. 
626-534). 

No  denial  was  attempted,  on  behalf  of  contestant,  as  to  the  firing  upon 
the  committee  of  citizens  near  Huiet's  Cross-Roads.  nor  as  to  the  fact 
that  the  Republicans  did  march  into  the  village,  and  up  to  the  polls, 
armed  with  clubs,  in  dense,  organized  bodies,  and  subtantially  as 
stated  by  contestee's  witnesses.  Under  these  circumstances  it  must  be 
conceded  that  it  was  not  only  legitimate,  but  right,  that  the  ballot-box 
should  be  protected  from  tlie  attack  of  an  armed  and  riotous  mob,  and 


SMALLS    VS.    TILLMAN.  499^ 

that  proper  measures  should  be  taken  to  preserve  the  peace  and  pre- 
vent violence.  Beyond  the  fact  that  the  citizens  held  their  position 
upon  the  court-house  steps,  the  only  complaint  as  to  the  measnres 
adopted  seems  to  be  that  a  squad  of  the  Edgefield  Eifles,  a  part  of  the 
State  militia,  assembled  at  their  armory  and  were  seen  at  the  windows 
with  their  arms. 

As  to  this,  Lewis  Jones,  sr.,  a  peace  officer  of  the  State,  thus  deposes 
at  pp.  519-30 : 

As  that  large  crowd  of  colored  men  were  approaching  the  imblic  square,  I  myself 
ordered  a  remnant  of  the  rifle  company  to  rendezvous  in  Masonic  Hall,  and  to  take  a 
position  in  the  windows  fronting  the  pnblic  square;  they  had  rifles.  There  wer» 
other  men  armed  with  guns,  but  few  in  number,  who  took  position  in  the  gallery  oc- 
cupied by  Mr.  Miners ;  this  was  done  for  the  pui-jjose  of  suppressing  a  riot,  for  it 
looked  very  much  like  a  riot ;  it  was  a  precautionary  measure,  I  regarded  it,  and  I 
think  it  had  that  eftect. 

Not  a  gun  was  fired,  and  not  a  man  was  hurt ;  but  R.  S.  Anderson 
testifies,  at  page  505,  that  he  has  heard  at  least  twenty  Republicans  say- 
since  that  if  it  had  not  been  for  those  guns  the  Republicans  would  have 
taken  the  ballot-box  that  day. 

As  soon  as  the  hostile  demonstration  was  at  an  end  the  record  shows 
that  the  Democrats  invited  and  urged  the  Republicans  to  remain  and 
vote,  and  voluntarily  made  an  arrangement  for  them  to  alternate  with 
the  Democrats  in  voting.     (See  pp.  504,  506-7,  514,  517-8, 519,  529,  &c.) 

Why,  then,  did  the  Republicans  leave  without  voting? 

It  is  charged  by  the  witnesses  for  the  coutestee  that  it  was  a  part  of 
the  preconcerted  scheme  of  the  Republican  leaders,  if  they  failed  in 
their  purpose  of  taking  forcible  possession  of  the  polls,  not  to  have 
their  followers  vote  at  all,  at  this  precinct ;  and  it  remains  to  see  how 
far  this  charge  is  suj)ported  by  the  testimony. 

A.  J.  Lee,  a  witness  for  contestant,  at  p.  211,  deposes  as  follows: 

Q.  Why  did  you  not  vote  at  the  last  election? — A.  Because  the  generality  of  the  Re- 
publicans  did  not  rote,  and  I  did  not  vrant  to  vote  after  they  left. 

Q.  Was  not  your  Republicanism  strong  enough  to  cause  you  to  votef — A.  Oh,  yes, 
sir;  but  I  did  uot  think  it  would  do  any  good,  but  I  was  invited  to  rote  that  evening. 

Q.  Why  did  the  Republicans  uot  vote  ? — A.  The  place  was  crowded  that  morning 
with  Democrats. 

Q.  Could  they  have  got  to  the  polls? — A.  They  could  not  have  got  there  until  the 
Democrats  got  away. 

Paris  Simpkins,  at  p.  224,  says : 

I  saw  quite  a  number  of  Democrats  rendezvousing  in  Masonic  Hall ;  they  carried 
their  guns  or  rifles  with  them ;  they  did  not  go  up  in  a  body,  but  went  two  or  three 
together ;  several  times  during  the  morning  there  seemed  to  be  some  excitement ;  then 
I  could  see  some  of  these  men  who  were  in  the  hall  rush  to  the  windows  in  menacing 
attitude.  I  then  left  the  vicinity  of  the  box,  and  urged  other  Republicans  to  leave  also, 
as  I  was  sure  they  could  not  have  a  fair  expression  at  the  ballot-box  of  their  choice, 
from  what  I  had  seen  ;  they  did  leave  without  voting. 

Masonic  Hall  was  the  armory  of  the  militia  company  above  referred 
to.  Why  a  portion  of  that  company  were  rendezvousing  there  on  that 
day,  as  also  what  the  "excitement"  referred  to  was,  has  already  beea 
shown. 

The  same  witness  testifies  further: 

Q.  Did  any  leading  Republican  besides  yourself  advise  the  Republicans  to  go  h(Mne 
and  leave  the  poll? — A.  Yes,  sir;  Lawrence  Cain  did  for  one.  David  Harris,  who  was 
on  the  ticket  for  the  legislature,  did  so  also. 

Q.  What  position  in  the  Republican  party  did  Lawrence  Cain  hold  t — ^A.  He  wa» 
chairman  of  the  Republican  party  of  the  county. 

Norman  Youngblood,  at  p.  235,  testifies  : 

Q    Did  you  vote  in  the  evening  f — A.  No,  sir ;  the  reason  I  did  not  vote,  the  largest 


600  DIGEST    OF    ELECTION    CASES. 

fiumher,  or  most  all,  to  a  small  number,  left.  Then  the  white  people  would  halloo  and 
«,sk  them  why  dou't  they  come  ou  aud  vote.  When  they  got  to  a  small  number  they 
■would  take  a  few  colored  aud  carry  them  up  aud  vote  theui.  Theuthe  door  would  be 
in  the  same  condition  as  it  was  before.  [  did  not  rote  because  the  larger  number  of-  col- 
■ored  people  had  gone  atcay  before  voting. 

S.  S.  Tompkins,  a  witness  for  coiitestee,  testifies,  at  pp.  oOC-7 : 

Q.  Could  not  those  voters  who  left  have  voted  if  they  had  desired  to  do  so  ? — A.  I 
■believe  they  could  have  done  so,  for  the  followiug  reasons:  Just  as  I  finished  voting 
Mr.  Durisoe  come  in  to  the  managers  and  said,  "  Hurry  up,  for  there  are  at  least  a 
thousand  negroes  here  to  vote,  and  if  you  dou't  hurry  you  will  not  get  through  before 
sundown."  Mr  Durisoe  is  the  Democratic  county  chairman.  One  colored  man  voted 
just  before  I  did,  and  there  was  others  on  the  portico  in  the  crowd.  Mr.  Durisoe  went 
down  in  the  crowd  of  colored  peojile  and  begged  them  to  ";o  near  the  polls,  that  in  a 
few  minutes  those  at  the  polls  would  be  through  voting.  1  also  saw  Mr.  Lewis  Jones, 
St.,  urging  parties  to  go  up  and  vote.  Mr.  Lewis  Jones  was  State  constable  that 
day,  and  a  prominent  man  in  the  community.  After  seeing  this  effort  on  the  part  of 
JSIr.  Durisoe  and  Jones  I  went  to  my  office,  expecting  nothing  else  but  that  every  one 
would  vote  here  who  wished  to  on  that  day,  and  was  surprised  at  seeing  a  l.irge  crowd 
leaving,  aud  among  them  Paul  Holloway,  an  intelligent  aud  influential  negro  iireacher, 
whom  I  knew  well.  I  accosted  him  and  asked  him,  "Where  in  the  world  are  yoa 
going,  Paul?"  He  replied  "I  am  going  home."  I  replied  to  this,  "  You  can  vote 
now :  there  were  not  twenty  Democrats  on  the  portico  to  vote  when  I  left."  He  re- 
plied to  this  laughingly,  "  Oh,  I  don't  care  about  voting  nohow." 

L.  Charlton  (at  p.  514)  testifies: 

Q.  Was  any  discrimination  shown  by  the  managers  in  reference  to  the  voters  here 
the  day  of  last  election  f — A.  None.  I  voted  with  two  or  three  colored  men  ;  they  were 
sowrn  the  same  time  I  was.  When  I  left  the  box  one  of  the  managers  told  me  to  say 
to  the  colored  Republicans  that  they  could  all  vote  ;  for  them  to  come  up  to  the  box 
four  or  six  a  the  time.  I  told  the  colored  voters  on  the  public  square  they  could  vote 
by  going  to  the  polls  four  or  six  at  a  time.  They  expressed  themselves  as  indifferent 
about  voting.  If  thev  could  not  vote  in  their  own  wav  they  did  not  care  to  vote  at 
all 

Wiley  Weaver,  a  witness  for  contestant,  who  testified  he  was  in  com- 
mand of  150  men,  deposes  (at  p.  692)  as  follows : 

Q.  Do  you  know  of  your  own  knowledge,  that  none  of  the  150  men  that  were  with 
jou  voted  ? — A.  I  do. 

Q.  Did  you  see  each  and  every  one  at  all  times  during  the  day  of  election  f — A.  I 
kept  them  together,  and  it  iras  a  rule  that  if  15  or  20  of  us  could  not  go  up  to  rote  at  once 
that  they  were  all  to  stay  in  ranks.  They  could  not  get  that  chance,  and  no  other 
chance,  and  we  all  kept  together. 

Lewis  Jones,  sr.  (at  p.  518)  testifies  : 

Q.  Did  not  the  fact  of  the  colored  men  leaving  the  polls  tend  to  confirm  the  rumor 
that  they  intended  to  take  forcible  i>ossessiou  of  the  polls,  and  if  they  could  not  do 
so,  then  pretend  that  they  were  intimidated  ? — A.  I  can't  say  positively  as  to  that ;  my 
impression  that  they  intended  to  take  possession  of  the  box,  and  when  they  found 
they  could  not  do  that  then  they  dispersed  and  went  to  other  boxes  to  vote. 

Contestant's  witness,  Norman  Youugblood  (at  p.  235),  says  : 

Q.  You  don't  know  that  those  men  did  not  go  and  vote  somewhere  else  ? — A.  No, 
sir;  I  don't  know  what  they  did  after  they  left. 

And  it  is  a  significant  fact  that  out  of  this  armj-  of  2,000  or  2,500  men 
not  one  of  the  raiik  and  file  is  produced^  or  shown  not  to  have  voted  else- 
where. 

From  this  review  of  the  testimony  relating  to  Edgefield  Court-house, 
which  contestant  has  made  his  principal  point  of  attack,  there  can,  we 
think,  be  no  dissent  from  the  following  conclusions  of  fact : 

1.  That  the  Republican  leaders  massed  their  followers  at  this  precinct 
from  all  over  the  county,  armed  with  clubs  aud  bludgeons,  and  iuteut 
upon  a  riotous  aud  violent  attempt  to  take  possession  of  the  polls. 

2.  That  the  village  was,  on  the  night  previous  to  the  election,  be- 
leaguered by  these  hostile  bands,  camped  upon  all  the  approaches  to  it, 


SMALLS    VS.    TILLMAN.  501 

and  firing-  npou  i>e;u-efiil  citizens,  in  the  public  highway,  sent  out  for  the 
purpose  ofinquiriiifji:  their  object  aud  intentions. 

3.  That  these  bauds,  aggregatiug  from  2,000  to  2,500  men,  marcheil 
up  to  the  polling  place  from  all  directions  on  the  morning  of  the  elec- 
tion, swinging  their  clubs,  with  yells  and  demonstrations  of  violence, 
and  attempted  to  take  possession  of  the  polls. 

4.  That  they  were  prevented  from  carrying  out  their  unlawful  pur- 
])ose  in  a  most  temperate  aiul  peaceful  manner,  with  the  least  possible 
show  of  force,  and,  immediately  upon  desisting,  were  invited  to  vote, 
and  offered  every  facility  fordoing  so  which  their  unusual  numbers  ren- 
dered possible. 

5.  That,  under  the  inspiration  of  their  leaders,  and  without  reasonable 
cause,  they  voluntarily  left  the  precinct  in  organized  bands,  as  they 
came,  and  went  elsewhere. 

As  to  the  relative  character  for  truth  and  Aeracity  of  the  witnesses 
for  contestant  and  contestee,  while  it  is  apparent  from  the  record  that 
the  latter  are  professional  and  representative  men  of  intelligence  and  of 
the  highest  social  standing  in  their  community,  there  will  be  found,  at 
pages  4:94-97  and  489-91  of  the  Record,  affidavits  by  the  chairman  of  the 
Bepublican  executive  committee  of  the  county  and  by  the  individual 
who  acted  as  the  contestant's  attorney  in  taking  testimony  for  him  in 
this  count}',  the  genuineness  of  which  is  admitted  by  both  of  them,  in 
which  they,  his  principal  witnesses,  swear  to  repeated  instances  in  which, 
£LS  members  of  the  legislature,  they  accepted  bribes  for  their  votes  appro- 
priating the  public  funds  for  the  payment  of  pretended  claims  against 
the  State. 

AIKEN     COUET-HOUSE. 

The  charges  against  this  poll  may  be  summarized  as  follows : 

That  the  Republican  supervisor  was  hindered  and  obstructed  in  the 
discharge  of  his  duties  ;  that  t'le  Democrats  crowded  the  polls,  resorted 
to  unnecessary  and  dilatory  challenges  for  the  purpose  of  delaying  and 
defeating  Republicans  in  their  attempts  to  vote,  and  made  discrimina- 
tion in  favor  of  Democratic  voters  in  the  matter  of  access  to  the  ballot- 
box  ;  that  violence  of  language  and  of  act  was  employed,  and  a  display 
of  fire-arms  made,  to  intimidate  Republicans  and  prevent  their  voting, 
and  that  a  cannon  was  placed  in  the  vicinity  of  the  precinct  and  used 
to  intimidate  and  overawe  Republicans. 

Upon  the  part  of  the  contestee  each  of  these  allegations  is  denied, 
and  it  is  claimed  that  the  crowding  of  the  polls  was  the  unavoidable  re- 
sult of  the  massing  of  Republicans  not  only  from  all  parts  of  Aiken 
County,  but  from  the  neighboring  county  of  Edgefield  ;  that  the  only  dis- 
play of  fire-arms  was  atone  period  in  the  day  when  a  riotous,  organized 
body  of  negroes  attempted  to  storm  and  capture  the  ballot-box,  and  in 
the  attempt  violently  assaulted  and  struck  the  sheriff  of  the  county, 
who  was  endeavoring  peaceably  to  restrain  them,  when  the  State  con- 
stables, wearing  their  badges  of  office,  appeared  on  the  scene  with  their 
arms  until  quiet  was  restored  ;  whereupon,  without  a  shot  being  fired, 
the  guns  were  removed,  and  seen  no  more ;  and  that  the  only  discrimi- 
nation shown  was  to  sick,  aged,  and  decrepid  men  of  both  parties,  with- 
out distinction,  who  were  allowed  access  to  the  ballot-box  from  the  exit 
end  of  the  approach  to  it. 

The  only  testimony  as  to  the  alleged  hinderance  or  obstruction  of  the 
supervisor  is  that  of  himself,  at  pp.  67,  68,  which  is  the  following : 

Q.  How  (lid  your  poll-list  agree  with  that  of  the  niauagers  ?— A.  I  did  not  keep  a 
poll  list. 


502  DIGEST  OF  ELECTION  CASES. 

Q.  Why  ? — A.  The  reason  I  did  not  I  asked  for  couveuieuces  to  keep  one,  and  the 
managers  answered  that  they  had  made  arrangements  for  the  Democratic  supervisor, 
and  the  Republicans  had  a  right  to  make  arrangements  for  me. 

•  *•««*• 

Q.  Were  you  hindered  or  intimidated  in  any  way  from  doing  your  duty  as  a  super- 
visor on  that  day  ? — A.  Yes. 

Q.  State  what  violence  or  intimidation  was  used  towards  you. — A.  There  was  no 
direct  violence,  but  there  was  remarks  made  which  caused  me  to  fear  to  press  for  an 
opportunity  to  carry  out  my  duty  as  a  supervisor.  I  don't  remember  the  exact  words 
of  the  remarks,  and  they  were  not  made  directly  to  me,  but  they  were  made  in  stich  a 
way  that  I  understood  them  to  be  meant  for  me.  Such  remarks  as  '*  We  are  going  to 
look  out  for  Democrats,  and  the  Republicans  must  for  you." 

This  is  the  entire  testimony  upon  this  point,  and  it,  perhaps,  is 
scarcely  sufficient  to  require  a  reply.  The  following,  however,  is  the 
testimony  of  James  E.  Crosslaud  (pp.  278-8),  the  chairman  of  the  board 
of  managers: 

Q.  He,  Rouse,  has  also  sworn  that  he  was  prevented  from  exercising  his  duties  as 
eupervisor  in  that  room;  is  this  so? — A.  Rouse  came  into  the  room  where  the  poll 
■was  to  be  held,  some  time  before  they  were  opened,  announced  himself  as  Repub- 
lican supervisor;  had  writing  materials  in  his  hand;  we  waited  together  with  our 
"watches  compared  with  each  other  until  6  o'clock  arrived,  when  we  opened  the  poll ; 
our  time  agreed ;  also  so  did  we  that  it  was  time  to  open  the  poll.  He  asked  for  a  table ; 
I  told  him  we  had  but  one,  which  was  a  long  one,  and  that  there  was  room  enough 
ibr  all. 

Q.  Was  he  given  room  at  that  table,  and  did  he  select  a  place  ? — A.  He  was  offered 
Toom  there,  and  assigned  to  a  place,  but  insisted  on  having  a  separate  table.  I  told 
Lim  that  was  the  best  I  could  do,  and  told  him  that  there  was  a  large  bench  that  he 
■could  use.  I  told  him,  on  his  refusal  to  come  to  table  or  use  the  bench,  that  was  the 
liest  I  could  do  for  him.  In  course  of  fifteen  minutes,  still  standing  near  table,  every 
courtesy  having  been  extended  to  him  that  we  knew  of,  he  said,  "I  will  withdraw." 
I  told  him,  that  I  had  nothing  to  do  with  that,  but  I  did  not  see  the  slightest  necessity 
for  it.  He  asked  me  to  open  the  door  for  him.  I  did  so,  and  he  went  out.  In  about 
twenty  minutes  he  knocked  at  door  again.  On  finding  him  at  dixir  let  him  in,  and 
Bardeen,  United  States  marshal,  came  in  with  him.  He  was  received  with  same 
courtesy  as  at  first,  and  took  position  near  clerk  of  board,  and  stayed  there  all  day; 
he  did  not  leave  the  room  again  that  I  know  of;  was  not  interfered  with  in  any  way. 

In  the  next  place,  as  to  the  charge  that  the  Democrats  crowded  the 
polls,  discriminated  in  favor  of  their  own  voter.s,  and  delayed  and  ob- 
structed Eepublican  voters  by  unnecessary  challenging: 

That  the  polls  were  crowded  it  is  admitted  on  both  sides.  The  re- 
sponsibility for  it  is  charged  by  the  Republicans  on  the  Democrats,  on 
the  ground  that  the  latter  obstructed  and  hin.lered  voting;  while  the 
Democrats  charge  it  upon  the  Republicans,  upon  the  ground  that  they 
not  only  massed  their  followers  there  from  their  own  precincts  in  other 
and  remote  parts  of  the  county,  but  brought  a  large  number  from  an 
adjoining  county.  It  only  remains  to  determine  which  charge  is  best 
supported  by  the  proofs. 

The  following  is  the  testimony  upon  this  point  produced  on  behalf  of 
contestant. 

D.  R.  Rouse  (at  p.  67)  says: 

Some  of  the  voters  were  hindered  in  votinjj  by  being  pu.shed  aside  by  other  voters. 
Democrats,  who  told  them  to  stand  aside,  and  said  tliat,  "  When  we  get  ready  for  you 
to  come  in  you  can  c<>me  in."  They  were  ordered  bi/  one  of  the  maiintjrrs  to  stop  pushiiiff 
these  voters,  ivho  uere  Uepublicans,  and  let  them  vote,  I  also  said  that  when  one  voter  got 
through  he  had  a  right  to  get  out  of  the  way  and  let  others  vote.  But  those  who 
were  shoving  and  pushing  the  voters  about  refused  to  stop  it  and  continued  to  do  so, 
saying  that  the  coons  must  stand  aside  until  they  (the  Democrats)  said  that  they 
could  come  in. 

To  properly  understand  this  and  other  statements  as  to  the  voting 
here,  it  is  to  be  borne  in  mind  that  the  ballot-box  whs  api)roacliod  by  a 
barricade  or  pas;>age  way  abiut  twenty  feet  long  ami  three  or  four  feet 


SMALLS    VS.    TILLMAN.  503 

wide  (p.  298),  leading  past  a  window  at  which  the  ballot-box  was  placed, 
the  voters  being  admitted  in  at  one  end  and  passing  ont  at  the  other. 
The  snpervisor  was  stationed  in  the  building  where  the  ballot-box  was, 
near  the  window,  and  the  crowding  and  pushing  to  which  he  refers 
must,  therefore,  necessarily  have  been  between  the  voters  who  had 
already  been  admitted  into  this  passage-way  and  had  reached  the  win- 
dow where  he  and  the  managers  were.  His  testimony  demonstrates, 
therefore,  that  the  voters  were  admitted  into  this  passage-way  indis- 
criminately, and,  in  the  crowd,  were  "shoving  and  pushing" each  other 
with  a  view  to  vote  and  get  out. 

The  only  other  testimony  upon  this  question  of  crowding  is  the  follow- 
ing from  the  deposition  of  James  Major,  at  p.  168: 

Q.  Had  there  raauy  white  men  voted  at  9  o'clock  in  the  merningf — A.  Yes,  sir; 
ri  fiht  smart  had  voted. 

Q.  Had  there  many  colored  men  voted  at  that  time? — A.  Not  a  great  deal;  there 
were  more  white  voters  than  colored,  because  they  commenced  to  blockade  them  from 
the  jump,  and  they  kept  them  barred  out  until  the  poll  closed.  At  6  o'clock  in  the 
evening  they  were  standing  there. 

It  will  hardly  be  seriously  contended  that  a  Congressman  should  be 
unseated  because  at  a  crowded  poll — and  the  cause  of  it  being  crowded 
will  presently  be  shown — his  adherents  had  the  superior  diligence  to 
first  reach  the  polls  and  gain  the  vicinity  of  the  ballot-box ;  especially 
when,  mirabile  dictu,  no  "  intimidation"  or  fraud  is  alleged  to  have  been 
resorted  to  for  the  purpose.  But  it  may  be  worth  while  to  show  the 
real  reason  why  few  Republicans  had  voted  at  9  o'clock  for  the  purpose 
of  illustrating  the  disposition  of  the  coutestaut's  witnesses  to  convey 
false  impressions. 

The  following  is  from  the  deposition  of  George  M.  Short,  another  wit- 
ness for  contestant,  at  p.  174  : 

Q.  •  Were  you  at  the  polls  during  any  part  of  the  day  ? — A.  I  was  there  all  day. 

Q.  State  all  that  occurred. — A.  About  «  o'clock  there  was  a  crowd ;  the  street  was 
full  as  it  could  stand  with  them,  of  colored  Republicans.  Between  7  and  8  Mr.  Gloster 
Harlin,  the  chairman,  bs Gommenrsd  issuing  the  tickets  and  taking  names. 

Q.  Who  is  Gloster  Harlin  1 — A.  He  is  the  Republican  chairmau  of  Aiken  County. 
He  commenced  taking  the  uaoies  and  issuing  the  tickets,  and  as  they  got  the  tickets 
they  would  fall  in  rotation  in  line  to  get  up  to  the  ballot-box  to  cast  their  tickets. 

In  other  words,  the  Democrats  were  voting  two  hours  before  the  Re- 
publicans commenced  to  distribute  their  tickets.  And  contestant's  wit- 
nesses, and  the  majoritj^  report,  attribute  the  consequent  delay  of  the 
Republican  voters  to  their  being  "  blockaded"  at  the  polls  by  the  Demo- 
crats. 

The  following  is  the  testimony  on  behalf  of  contestant  in  support  of 
the  charge  that  unnecessary  and  dilatory  challenging  of  votes  was  re- 
sorted to  by  the  Democrats  "to  deprive  Republicans  of  the  opportunity 
to  cast  their  ballots. 

E.  M.  Bray  ton,  whose  vote  was  challenged,  and  disallowed  on  the 
ground  of  non-residence,  at  p.  163,  testifies  : 

Q.  When  Republican  voters  attempted  to  vote  were  any  unnecessary  questions 
Asked  them,  for  the  evident  purpose  of  delay  ?— A.  As  I  have  said  before,  I  was  not 
near  enough,  and  could  not  get  near  enough,  to  that  poll  to  overhear  the  questions 
that  were  asked,  and  can  only  state  what  they  were  from  the  general  report. 

Q.  Give  the  general  report. — A.  It  was  ireU  understood  among  the  RepuhVicans  there 
who  u-ere  waiting  to  vote  that  they  were  being  ob.strncted  and  prevented  from  the  exer- 
cise of  their  rights  by  law,  by  all  manner  of  questions  being  asked  them  that  would 
consume  time. 

Q.  What  questions  were  asked  of  you?— A.  I  was  asked  where  I  had  my  washing 
done,  where  my  family's  washing  was  done,  and  where  my  family  was  living.  There 
were  not  very  many  questions  asked  of  me,  I  being  so  well  known  here;  but  there 


504  DIGEST    OF   ELECTION   CASES. 

was  cousiderable  time  taken  up  by  cousnltatiou  aiuoug  the  board  of  managers,  and 
the  arguments  addressed  to  them  by  the  challengers  who  were  i)resent  there. 

It  will  be  observed  that  even  when  the  witness  was  invited  to  give 
hearsay  evidence  of  improper  or  dilatory  challenging,  he  is  able  to  re- 
spond only  by  stating  that  the  Eepublicans,  not  at  or  near  the  box,  "  well 
understood"  that  they  were  being  obstructed  and  prevented  in  the  man- 
ner charged.  Rouse,  the  Republican  supervisor,  and  Bardeen,  a  Repub- 
lican deputy  marshal,  both  of  whom  were  in  the  room  with  themanagerSy 
and  both  of  whom  testified  on  behalf  of  contestant,  make  no  such  charge. 

The  following  is  the  testimony  on  behalf  of  contestee  upon  this  point: 

D.  S.  Henderson,  State  senator  (pp.  280-287),  says  : 

Q.  State  right  here  the  manner  of  swearing  voters. — A.  Several  men  would  come  np 
and  then  three  or  fouf  of  them  would  be  sworn  and  voted,  and  I  saw  no  distinction  in  this- 
between  Democrats  and  Republicans ;  two  and  three  and  four  would  be  sworn  ;  no 
man  voted  without  being  sworn,  to  my  knowledge.  I  was  there  most  of  the  time^ 
and  would  have  st  en  it  had  it  been  done.  Being  satisfied  that  a  great  many  were  on 
ground  from  Edgefield,  we  took  precaution  to  get  copies  of  census  book  of  this  county 
from  clerk's  ofhce  ;  these  were  prepared  by  revisers  ;  that  we  had  previously  heard  of 
their  coming ;  and  the  mode  of  challenging  was — when  a  man  came  up  we  did  not  know 
this  book  was  referred  to  as  evidence  of  where  he  lived — he  was  asked  from  what 
township  he  was  from,  and  we  would  see  if  his  name  was  on  the  censiis  book  ;  if  hia 
name  was  not  there,  inquiry  was  then  made  whether  he  could  prove  that  he  lived  in  the 
county,  or  whether  he  could  bring  anybody  to  prove  that  he  resided  in  the  county;  in 
other  words,  this  book  was  not  taken  as  conclusive  evidence.  Bouse  said  lie  thought 
that  a  fair  ivay,  a)id  said  he  had  no  objection  ;  this  was  the  United  States  census,  taken 
last  year.  If  it  was  shown  either  by  white  or  colored  witnesses  that  the  party  chal- 
lenged lived  in  the  county,  though  his  name  did  not  appear  on  the  census  book,  he 
was  allowed  to  vote.  I  remember  several  instances  in  which  Rouse  identified  parties 
as  liA'iug  in  the  county,  and  though  his  name  did  not  ajjpear  on  the  census  book,  he 
voted.  Many  men  who  were  challenged,  when  asked  where  they  lived,  answered  in 
Edgeiield  County,  and  of  course  were  rejected. 

Ja^ies  Aldrich,  a  lawyer  and  a  member  of  the  State  legislature  (at  pp* 
299  and  302),  says  : 

I  saw  no  discrimination  atempted  by  any  officer.  As  each  batch  came  up  they 
were  sworn  and  voted,  if  legal  voters.  Sometimes  a  person  would  otFer  to  vote  and 
have  his  vote  challenged  ;  when  it  was  challenged  the  party  so  challeuging  was  re- 
quired to  give  reason  therefor;  the  managers  would  hear  challenge.  The  United 
States  authorites  having  recently  taken  the  census,  copiesof  the  same  were  procured; 
reference  was  made  to  those  census  returns  as  a  source  of  evidence  only.  As  I  gathered 
from  hearing  discussiou  and  what  managers  said  that  those  retiarns  were  not  conclu- 
sive with  them,  when  some  statement  by  voters  of  their  residence  did  not  tally  with 
return,  and  some  member  of  managers  or  either  of  supervisors  stated  of  their  own  in- 
formation they  knew  such  person  entitled  to  vote,  he  was  allowed  to  do  so  ;  there  was 
no  exception  to  this  rule  so  far  as  it  came  under  my  observation.  I  saw  others  offering 
to  vote,  whose  votes,  being  challenged,  made  statements  as  to  residence  which  were 
not  supported  by  the  census  returns,  yet  such  persons  were  told  by  managers  to  get 
some  one  to  substantiate  their  statements  and  bring  such  persons  before  the  board  to 
give  Iheir  knowledge  as  to  the  facts.  Several  challenged  voters  left  the  polls  and  after 
a  while  returned  with  some  person  who  could  substantiate  their  statements,  and  they 
were  then  allowed  to  vote.  I  have  been  a  manager  of  election  of  this  county  and  pre- 
cinct at  all  since  1874,  and  at  each  and  every  of  these  elections  I  heard  parties  offer- 
ing to  vote  challenged.  At  last  election,  different  from  none  of  the  others  in  this 
respect. 

Cross-examined : 

Q.  What  was  the  nature  of  the  questions  generally  propounded  ? — A,  They  gen- 
erally challenged  for,  1st,  non-residence;  2d,  a  second  attempt  to  vote;  3d,  under  age, 
and  perhaps  one  or  two  for  persons  who  lived  at  poor-house. 

Q.  Did  you  see  this  census  book  ? — A.  Yes,  sir. 

Q.  In  whose  possession  was  it  ? — A.  I  cannot  say  in  whose  possession  it  was ;  I  saw 
it  at  polls  on  table,  I  think,  or  window-sill ;  I  was  called  by  some  one  to  recognize 
some  party  applying  to  vote,  a  colored  man  ;  I  knew  him,  and  he  voted;  just  then 
some  other  was  challenged,  and  I  was  asked  to  look  in  township  return  to  see  if  his 
name  appeared  ;  I  did  not  find  his  name;  the  voter  said  he  could  be  identified,  and 


SMALLS    VS.    TILLMAN.  505 

he  left  the  poll  for  that  purpose ;  I  cannot  say  that  he  came  back ;  I  left  in  a  few  mo- 
ments myself;  I  think  he  voted,  though.  I  heard  him  say  so  abont  fifteen  minutes- 
afterward. 

Q.  Is  there  a  registration  law  in  this  State  ^ — A.  No,  sir. 

Q.  Were  not  colored  people  required  to  prove  residence  by  a  white  man  when  he 
was  challen.i;ed  ? — A.  No,  sir  ;  Rouse  was  supervisor ;  on  his  say  some  were  accepted  ; 
other  colored  men  would  speak  up  of  residence,  also. 

James  Major,  witness  for  contestant  (at  p.  368),  says : 

Q.  Were  there  many  questions  asked  of  the  voters  when  they  went  to  vote  ? — A, 
Yes,  sir ;  the  colored  voters.  I  did  not  hear  the  questions  exactly  asked,  but  they 
kept  them  there  some  time. 

Q.    JVere  the  ichite  voters  detained  at  the  box  f — A.  Ko  sir. 

Q.  Could  you  hear  the  questions  asked  by  the  managers  f — A.  I  could  not  hear. 

Had  the  object  been  to  hinder  the  voting,  can  any  reason  be  given 
why  time  was  notconsumed  upon  the  white  as  well  as  the  colored  voters  ? 

Bnt  that  Democrats  as  well  as  Republicans  were  challenged  is  shown 
by  the  testimony  of  M.  T.  Holly,  the  sheriff  of  the  county,  who  (at 
pp.  313-14),  says : 

Q.  Was  it  the  purpose  of  the  managers  to  facilitate  or  retard  the  voters  ? — A.  I  saw 
nothing  that  led  me  to  believe  but  that  every  man  had  a  fair  show  to  vote. 

Q.  In  about  what  proportion  were  challenges  ? — A.  I  cannot  say ;  perhaps  more 
by  Democrats,  as  there  were  a  large  number  of  strangers  here  who  were  unknown ; 
some  from  Edgefield. 

Q.  Were  not  colored  voters  so  challenged  required  to  locate  themselves  by  some 
white  luau  T — A.  No,  not  that  I  know. 

Q.  What  was  the  nature  of  the  questions  nsed  to  those  challenged? — A.  The  usiial 
question  to  challenges  ;  question  of  age  may  have  been  asked,  but  the  colored  people 
do  not  know  their  ages  generally. 

And  see  pp.  285  and  302. 

The  foregoing  is  believed  to  be  the  entire  testimony  upon  this  sub- 
ject. Its  utter  insuflBciency  to  sustain  the  grave  charge  of  malfeasance 
made  against  the  election  officers  is  api)arent  without  comment.  Two 
observatious,  however,  remain  to  be  made  in  this  connection,  viz : 

1st.  2s^ot  a  single  witness  claiming  to  have  been  unnecessarily  delayed 
at  the  box,  or  to  have  been  needlessly  challenged,  or  asked  unnecessary 
or  dilatory  questions,  has  been  produced,  unless  E.  M.  Brayton  can  be 
regarded  as  making  such  a  claim.  And,  as  to  him,  the  testimony  is  aa 
follows  : 

D.  S.  Henderson  (at  pp.  282  and  284-6)  says  : 

Q.  How  long  have  you  resided  here  ? — A.  Since  1872. 

Q.  How  long  have  you  known  Mr.  E.  M.  Brayton? — A.  He  was  here  when  I  came; 
once  resided  here  and  practiced  law. 

Q.  W  en  did  Mr.  Brayton  leave  here  ? — A.  Shortly  after  1870. 

Q.  Are  you  certain  that  he  has  not  lived  in  Aiken  for  past  year  or  so  ? — A.  I  am ;  he 
has  not  lived  here  for  three  years ;  he  lives  in  Columbia  ;  he  has  had  no  residence  here 
since  1876.  Mr.  Brayton's  vote  was  challenged  here  in  the  last  election  because  he  had 
not  resided  here  for  more  than  a  year.  He  was  questioned  as  to  where  he  lives,  and 
his  business  was,  and  on  his  answering,  he  was  rejected. 

Cross-examined : 

Q.  Upon  what  ground  did  yon  challenge  my  vote  ? 

(Question  put  by  Mr.  E.  M.  Brayton,  counsel  for  Smalls.) 

A.  I  challenged  your  vote  because  I  honestly  believed  that  you  were  not  entitled  to- 
vote  at  this  box  according  to  law,  not  having  been  a  resident  of  this  county  for  sixty 
days  next  preceding  said  election ;  and  because  at  the  time  you  offered  yourself  as  a 
voter  yon  and  your  family  were  residents  of  the  city  of  Columbia,  in  this  State;  and 
this  yon  admitted  when  questione<l  at  the  ballot-box. 

Q.'  What  official  position  do  I  hold  f— A.  Internal-revenue  collector. 

Q.  Do  you  know  where  the  duties  require  me  to  reside,  or  do  you  know  where  the 
general  office  is  located  ?— A.  Your  office  is  in  Columbia. 

Q.  When  I  ottered  to  vote,  did  I  claim  that  this  wasmy  legal  voting  place  ?— A.  You 
so  claimed,  bnt  admitted  that  you  and  fitmily  lived  in  Columbia. 

Q.  Do  you  claim  or  hold  that  a  man  cannot  Uve  in  one  place  and  have  a  legal  vote 


506  DIGEST    OF    ELECTION    CASES. 

in  another  ? — A.  I  say  that  in  order  to  be  entitled  to  a  vote  in  a  locality,  his  place  of 
habitual  living  must  have  been  there  sixty  days  next  i)revious  to  the  election. 

Mr.  Aldrich,  who  was  a  inauager  of  election  at  this  precinct  at  every 
election,  prior  to  tbe  last  one,  since  1874,  says  (at  p.  302) : 

Q.  How  loug  since  Mr.  Brayton  left  here  ? — A..  About  three  or  four  years. 
Q.  Did  you  ever  know  him  to  vote  here  within  that  time  ? — A,  No,  sir. 

Brayton  himself  admits  that  he  came  to  Aiken  on  the  morning  of  the 
election  at  abont  nine  o'clock,  from  Columbia,  which  is  about  seventy- 
five  miles  distant,  on  the  cars,  and  returned  at  about  half-past  two  p. 
m.,  as,  also,  that  few  questions  were  asked  him. 

2d.  The  number  of  ballots  actually  cast  at  this  precinct  must  be  re- 
garded as  effectually  disproving  the  charge  that  voting  was  fraudu- 
lently or  intentionally  retarded  by  the  election  officers.  The  law  of  the 
State  requires  that  the  managers  shall  administer  to  each  person  offering 
to  vote  an  oath  that  he  is  qualified  to  vote  at  this  election  according  to 
the  constitution  of  this  State,  and  that  he  has  not  voted  during  this 
•election  (p.  476).  The  only  testimony  as  to  the  time  required  for  this  is 
the  following  from  the  deposition  of  O.  C.  Jordan,  chairman  of  the 
<MDmmissioners  of  election  at  (p.  316) : 

Q.  About  how  long  would  it  take  a  voter  to  vote? — A.  Without  any  interference,  I 
should  judge,  about  half  a  minute  to  forty-five  seconds. 

But  though  the  veracious  James  Major,  deputy  marshal,  swears,  at 
p.  167,  that  the  voters  were  admitted  at  the  rate  of  six  to  every  fifteen 
or  twenty  minutes,  the  returns,  at  p.  474,  show  that  over  eleven  hundred 
ballots  were  cast  at  this  precinct,  or  nearly  one  hundred  per  hour,  not- 
withstanding the  time  unavoidably  lost  in  challenges  made  necessary 
by  the  attempt  on  the  part  of  the  Keiiublicans,  m  which  Deputy  Marshal 
Major  admits  participation,  to  vote  residents  of  Edgefield  County. 

The  charge  of  discrimination  in  favor  of  Democratic  voters  in  the 
matter  of  access  to  the  polls  perhaps  requires  some  further  description 
of  the  approach  to  the  ballot-box.  It  is  thus  given,  at  p.  299  of  the 
record,  by  Mr.  Aldrich,  who,  as  stated  by  contestant  at  p.  106  of  his 
brief,  is  a  prominent  lawyer  and  member  of  the  house : 

The  poll  was  located  in  a  brick  building  occui)ied  by  Jordan  ;  box  at  front  Avindow, 
about  breast  high  to  an  ordiuary  man  ;  the  barricade  in  front  was  about  twenty  feet 
long,  three  or  four  feet  from  house.  I  was  manager  of  election  in  1876  under  Repub- 
lican administration  and  a  barricade  was  made  by  them  then  longer  than  this ;  in 
fact  I  do  not  remember  Iiaving  witnessed  an  election  since  1874  without  this  barricade. 
I  stood  near  the  polls  during  greater  part  of  day  ;  much  of  time  stood  near  the  exit 
end  of  barricade  out  of  way  of  voters,  but  where  I  could  see.  The  voters  seemed 
inclined  to  crowd  too  fast  at  the  entrance,  and  the  State  constable,  I  think,  two,  were 
placed  at  each  end  of  barricade.  The  voters  were  allowed  to  come  in,  in  number  two 
to  four  at  a  time  ;  white  and  colored  came  in  together.  Democrats  and  Republicans. 
I  saw  no  discrimination  attempted  by  any  oflScer.  As  each  batch  came  up  they  were 
sworn  and  voted,  if  legal  voters. 

jS^o  distinction  in  favor  of  Democrats  in  the  matter  of  admission  at 
the  entrance  end  of  this  passage-way  is  alleged  by  any  witness.  The 
only  discrimination  that  is  claimed  to  have  been  made  is,  that  Demo- 
crats were  allowed  to  enter  at  the  exit  end  and  vote,  and  that  the  like 
privilege  was  denied  the  Republicans. 

Contestant's  testimony  upon  this  point  is  the  following.  E.  M.  Bray- 
ton at  (pp.  162  and  165)  says : 

Q.  Did  all  the  voters  pass  in  at  tbe  northern  end  ? — A.  No,  sir  ;  I  saw  several  pass- 
ing iu  at  the  other  end,  and  it  seemed  to  be  the^gcneral  understanding  that  whenever 
white  jieople  wanted  to  vote  that  they  would  be  taken  iu  tliat  end  intended  for  the 
«xit  and  allowed  to  vote  ;  while  that  was  going  on  of  course  the  colored  people  would 
be  blocked  up  in  the  passage  way  and  their  voting  discontinued.  It  was  understood 
the  large  bulk  of  white  people  had  voted  early  in  the  day. 


SMALLS    VS.    TILLMAN.  507 

Cross-examined : 
Q.  Was  this  knowledge  that  the  white  men  seemed  to  be   permitted  to  vote  at 
the  exit  end  gathered  from  what  yon  heard  or  from  what  you  saw? — A.  My  knowl- 
edge on  that  point,  I  should  say,  was  based  more  upon  what  I  heard  than  what  I  saw; 
but  what  I  witnessed  confirmed  the  reports  that  I  lieard. 

What  lie  "  witnessed,"  in  this  regard,  is  thus  stated  bv  him,  at  p. 
IGl: 

Q.  Did  you  go  to  the  poll  to  vote  ? — A.  I  did,  about  2  o'clock ;  I  had  been  waiting 
there  for  an  opportunity  to  get  access  to  the  poll  where  I  could  vote  ;  I  saw  no  appar- 
ent diminution  of  the  crowd  at  that  time  ;  I  had  observed  through  the  passage,  or  what 
was  intended  for  the  exit  of  voters,  that  there  was  occamonaUy,  or  frequently,  [which  f  ] 
voters  coming  in  for  the  purpose  of  voting ;  and  the  other  end,  which  was  intended 
for  the  voters  to  go  in  to  vote,  that  there  was  a  large  mass  of  people  waiting  there 
for  an  opportunity  to  vote.  I  had  not  been  able  to  tind  a  chance  of  reaching  the  poll, 
so  I  spoke  to  the  sheriff  and  told  him  that  I  was  anxious  to  leave  by  the  train,  and 
asked  him  if  it  was  not  possible  for  him  to  clear  the  way  so  I  could  cast  my  vote. 
He  said,  "  Oh,  certainly,  you  can  come  with  me,  and  I  will  get  you  a  place."  He 
cleared  the  way  through  the  crowd,  and  carried  me  to  the  end  intended  for  the  exit 
of  the  voters  to  the  poll. 

James  Major,  the  faithful  deputy-marshal  (at  i)p.  1G7  etscq.),  testifies : 

Q.  Were  the  white  men  and  the  colored  men  allowed  to  come  in  indiscriminately? — 
A.  No,  sir. 

Q.  State  how  they  were  admitted? — A.  The  colored  people  all  was  packed  on  that 
end  where  they  said  they  had  to  come  in  ;  they  were  strong  from  the  entrance,  packed 
one  upon  another  up  to  the  poll,  and  the  Democrats  had  a  stick  across;  at  this  end 
where  I  said  they  had  two  men  with  two  sticks  across  the  door,  and  they  let  them  in. 
They  said  no  one  could  come  in  there.  After  a  while  they  brought  up  a  white  man 
and  said  he  was  a  sick  man,  and  let  him  go  through  that  way.  /  had  a  ciood  many  sick 
men,  too ;  I  sent  off  and  brought  up  my  sick  men,  and  they  said,  they  can't  go  in  here. 
Finally,  all  the  whites  crowdeil  the  poll  to  get  in  this  way. 

Q.  Which  end  are  you  speaking  of? — A.  The  whites  went  through  the  south  end. 

Q.  All  the  white  people  ? — A.  Pretty  much  all;  if  the  colored  men  went  uj)  those 
in  the  crowd  were  cutting  them  up  with  knives ;  they  got  the  people  so  excited  with 
their  cutting  them  up  with  knives.     I  went  in  there  when  the  crowd  was  thin. 

Q.  Did  the  most  of  the  white  voters  come  in  from  the  south  side  ? — A.  Yes,  sir. 

Q.  And  the  colored  people  were  kept  at  the  north  end? — A.  Yes,  sir. 

Q.  Would  the  managers  of  election  let  the  white  men  in  while  the  colored  people 
■were  waiting  on  the  north  side  to  vote? — A.  Yes,  sir ;  they  staid  there  until  the  poll 
closed,  at  6  o'clock. 

Q.  Did  the  managers  say  the  colored  voters  must  come  in  from  the  north  side? — A. 
I  don't  know  what  the  managers  said. 

Q.  Did  the  men  say  so  ? — A.  They  said  they  must  go  around  on  the  north  end,  and 
the  white  people  on  the  south  end. 

The  alleged  cutting  by  Democrats  will  be  considered  in  its  place. 

Cross-examined : 

Q.  Was  there  during  the  day  a  colored  man  let  in  at  this  exit  end  of  the  barricade 
•who  was  too  sick  to  vote? — A.  Yes.  sir. 

Q.  i\bout  how  many  ?—  A.  I  could  not  say  exactly  how  many,  but  I  know  that  two 
or  throe  slipped  in  at  that  end. 

Q.  But  was  there  not  some  who  were  sick  that  they  let  in  that  end  ? — A.  After  they 
cut  Uncle  Sam  so  bad  they  let  him  in. 

Q.  Yon  know  any  other  ? — A.  No,  sir ;  no  other.  I  think  John  Holsom  ;  he  was 
sick,  and  he  went  in  that  way. 

Q.  You  carried  some  sick  peojjle  there,  and  they  were  refnsed  ? — A.  I  disremember 
■whf)  they  were,  but  I  called  for  some  sick.  1  will  tell  you  who  was  one  that  went  in» 
one  old  man  named  Greenhiver;  he  was  one  of  the  sick  that  I  tried  to  get  in  there. 

And  this  is  all  the  testimony  to  prove  "  discrimination." 
Mr.  Aldrich  (at  pp.  299,  300),  says : 

As  to  discrimination  between  Democrats  and  Republicans,  in  that  many  Democrats, 
as  it  is  charged,  were  allowed  to  approach  the  ballot-box  from  the  exit  end  to  vote, 
this  is  not  true.  I  did  see  voters  approach  the  box  from  the  exit  end,  but  such  were 
Democrats  and  Republicans.  Sick  voters  were  allowed  to  enter  there.  I  saw  some 
ministers  and  very  old  i>eople  also  go  in  that  end.     1  probably  saw  some  few  others 


508  DIGEST    OF    ELECTION    CASES. 

enter  there.  I  do  not  remember  why.  This  class  was  not  large  though,  I  had  no 
special  right  to  know  why  they  were  allowed,  as  1  had  no  authority  over  the  election, 
and  unless  I  heard  reas<m  made  with  application  therefor  I  made  no  eli'ort  to  discover. 
I  heard  a  great  many  Democrats  and  Reijublicaus  told  that  they  could  not  enter  at 
exit  end,  and  all  voters  were  directed  to  go  to  the  entrance. 

Cross-examined  (p.  303): 

Q.  You  spoke  of  white  and  colored  men  entering  at  exit  end ;  in  what  proportion  f — 
A,  I  cannot  say;  not  many  of  eitber. 

Q.  Did  you  see  more  than  one  colored  man  ? — A.  Yes. 

Q.  More  than  ten  ? — A.  I  saw  several;  don't  know  how  many. 

A.  Moi-e  than  five  ? — A.  My  memory  is  not  clear.  I  noticed  this  as  I  did  anything 
else  occurring  that  day ;  I  would  say  more  than  five,  though. 

Q.  Were  there  more  than  twenty  ? — A.  I  cannot  say ;  I  have  given  you  as  far  as*! 
could. 

Q.  Of  the  number  of  colored  men  you  saw  enter  exit  end  were  they  Republicans? — 
A.  Yes;  they  were  mostly  Republicans. 

Q.  About  how  many  whites  entered  at  exit  end? — A.  I  cannot  say  ;  there  may  have 
been  ten,  fifteen,  or  thirty;  possibly  more  or  iiossibly  less;  as  compared  with  num- 
ber that  entered  entrance  end  it  was  small.  A  reason  had  to  be  given  for  one's  going 
in  at  exit  end,  sick,  aged,  and  so  forth. 

Q.  Were  there  less  than  300  ?— A.  Yes. 

Q.  Less  than  150? — A.  I  don't  think  I  saw  more  than  fifty,  if  that  many,  enter  at 
the  exit  end — that  day. 

James  T.  Wingard,  the  town  marshal  of  Aiken,  testifies  (at  pp.  309, 
310:) 

I  could  not  vote  until  late  in  afternoon  on  account  of  crowd  of  colored  men.  Some 
one  got  me  in  to  vote  or  I  could  not  have  voted. 

Cross-examined : 
Q.  At  what  end  did  you  vote? — A.  At  exit  end. 

Q.  Did  colored  people  surround  that  end  ? — A.  Yes,  and  voted  there ;  they  let  in  two 
colored  men  when  I  voted  ;  they  were  Republicans. 

O.  C.  Jordan,  a  lawyer  (at  pp.  315,  316,)  says: 

Voting  continued,  and  the  pressure  was  great,  and  hard  for  any  one  to  stay  in  the 
crowd.  I  saw  white  and  colored  men  leave  the  crowd ;  could  not  stand  the  pressure. 
I  stood  there  at  the  entrance  over  three  hours  to  keep  the  entrance  clear.  Later  some 
one  said  John  Holstein  is  here,  a  colored  man  with  consumption,  and  wants  to  vote. 
I  went  to  the  carriage  door  and  took  him  through  the  exit  end,  and  told  the  parties 
there  to  keep  the  crowd  out,  to  let  him  in,  as  he  was  unable  to  go  in  at  the  entrance. 
They  let  us  in  and  he  voted  directly.  Sam  Harvey  was  driven  up  in  a  cart,  and  said 
he  bad  been  cut,  aod  has  come  back  to  vote.  I  took  him  in  at  the  exit  end,  and  he 
went  in  that  side  also  and  voted ;  a  colored  man.  A  drunken  man  was  standing  near 
the  exit  end  and  used  oaths  about  colored  men  being  let  in  and  not  whites  at  the  exit 
end.  Chatfield,  in  a  few  moments,  walked  up  and  said:  "I  can't  stand  to  press  in  at 
the  entrance  ;  get  me  in  to  vote."  He  is  a  Republican,  and  the  parties  knowing  him, 
let  him  in  at  the  exit  end.  They  knew  him  as  a  respectable  man.  As  he  came  out 
this  drunken  man  cursed  Chatfield.  He  (Chatfield)  slapped  me  on  the  shoulder  and 
said:  "That  man  is  crazy."  I  voted  others  at  that  end.  I  have  four  colored. men  at 
work  with  me.  They  all  voted  the  Democratic  ticket.  As  to  the  location  of  the  poll- 
ing place,  the  idea  to  change  it  to  the  place  where  it  was  held  was  not  had  until  the 
day  before  the  election.  We  had  heard  that  all  the  Republican  voters  would  be 
massed  here,  and  the  place  previously  agreed  on  was  on  a  side  street,  considered  too 
narrow. for  the  crowd  expecting  to  be  here,  and  the  change  was  made  to  Main  street  as 
more  fit  for  all  purposes.  I  am  fully  satisfied  had  the  colored  people  conducted  them- 
•selves  in  a  becoming  manner  there  would  have  been  no  trouble  at  this  poll. 

And  see  testimony  of  D.  S.  Henderson  at  p.  286. 

The  testimony  shows  bnt  three  able-bodied  men,  besides  the  town 
marshal,  who  voted  at  the  exit  end,  viz :  Brayton,  Chatfield,  and  Deputy 
Marshal  Major — all  Repnblicans. 

James  E.  Crossland  (at  p.  228.  says:) 

Q.  James  Major  has  stated  that  the  Republican  voters  were  prevented  from  coming 
in  to  vote,  and  that  Democrats  were  allowed  in  freely;  state  it  this  be  so  or  not. — A. 
During  most  of  the  day  I  administered  oath  to  voters ;  occasionally  one  of  the  other 


SMALLS    VS.    TILLMAN.  509 

managers  would  take  my  place ;  bat  while  I  was  on  duty  there  was  a  continuous 
stream  of  voters  coming  in  at  entrance  end  and  going  out  at  exit  end.    As  far  as  I 

could  sec  there  was  no  disv-rimiuation  made. 

And  ueitber  tlie  llepublicaii  supervisor  uor  Deputy  Marshal  Bardeen, 
both  of  whom  were  with  the  managers,  and  both  of  whom  were  exam- 
iue<l  as  witnesses  for  contestant,  make  any  charge  of  this  character. 

The  following  testimony,  showing  why  the  polls  were  so  crowded  at 
this  poll,  may  as  well  be  introduced  here: 

Mr,  Henderson,  State  senator,  at  p.  282,  says : 

Q.  State  whether  or  not  there  was  a  large  crowd  of  negroes  here  that  day  or  not  T — 
A.  An  unusually  large  ,crowd  from  Silverton,  Miles's  Mill,  Langley,  Beech  Island, 
Euns  Chalk  Beds,  near  Bath,  who  could  easily  have  voted  at  their  homes.  There 
were  precincts  at  Laugley,  Schutz,  Low  Town,  near  Miles's  Mill,  at  Beech  Island,  and 
Silverton.     They  were  jjlenty  from  Edgefield  also. 

Mr.  Crossland,  (at  pp.  288,  289,)  testifies  : 

Q.  How  long  have  you  resided  in  the  territory  embraced  in  the  present  county  of 
Aiken  ? — A.  About  thirty-five  years. 

Q.  Have  you  not  surveyed  in  a  great  many  portions  of  the  county  ? — A.  Yes,  sir. 

Q.  Have  you  planted  in  Aiken  County  ;  and,  if  so,  how  long,  and  in  what  locality  ? — 
A.  I  have  planted  since  1852,  on  the  Upper  Three  Rivers,  near  line  in  lower  part  of 
county ;  in  Beech  Island,  in  Millbrook,  and  Aiken  townships. 

Q.  Have  you,  then,  not  had  occasion  to  become  acquainted  with  the  negroes  in  that 
part  of  the  county  ? — A.  I  kniw  a  great  many  of  them  in  that  part. 

Q.  Did  you  not  see  a  great  many  negroes  here  that  day  that  reside  in  those  remote 
sections  of  the  county? — A.  Yes,  sir;  I  saw  some  from  various  remote  parts  of  the 
county. 

Q.  Did  you  not  see  some  there  from  Edgefield  ? — A.  I  heard  at  least  three  acknowl- 
edge at  the  poll  that  they  were  from  Edtjefield  County  ;  strangers  to  me. 

Q.  Do  you  not  know  the  locality  of  the  various  voting  precincts  in  the  county  ? — 
A.  Yes,  sir;  a  great  many  of  them. 

Q.  Were  not  a  good  many  coloi-ed  peoiile  here  who  lived  much  further  from  this 
poll  than  others  in  the  county  ? — A.  Yes  ;  a  great  many. 

A.  Was  not  the  crowd  at  the  poll,  and  the  consequent  exclusion  of  a  few  at  the  close, 
due  to  this  unusual  influx  from  other  remote  sections  of  the  county  f — A.  I  think  so 
beyond  doubt. 

Q.  Had  these  colored  people  remained  and  voted  at  the  precincts  in  their  neighbor- 
hood, would  not  every  white  and  colored  man  here  have  had  an  ample  opi)ortunity  to 
vote  ? — A.  Yes;  hours  before  the  polls  closed  they  would  have  finished.  This  teas  the 
largest  vote  era'  polled  here. 

Q.  Do  you  not  know  that  a  considerable  number  of  the  Republican  voters  reside  in 
the  vicinity  of  Langley  and  Silverton  precincts? — A.  Yes,  sir. 

Q.  Can  you  state  how  many  Republican  votes  were  polled  at  Langley  and  Silver- 
ton  ? — A.  Not  a  one  at  either  poll.  James  Powell,  a  northern  man  and  supervisor  at 
Langley,  voted  Democratic  ticket,  all  but  Garfield.     Said  he  could  not  stand  Smalls 

See  also  testimony  of  Mr.  Aldrich,  at  p.  300 ;  Thomas  H.  Havne,  p. 
317. 

Contestant's  own  witness,  James  Major,  the  "deputy  marshal,"  testi- 
fies as  follows,  (at  pp.  172,  173) : 

Q.  These  three  hundred  men  and  over,  were  they  from  Aiken  precinct,  or  from  other 
l>arts  of  the  county  ? — A.  They  were  from  Aiken  and  some  were  from  Mile's  Mill. 

Q.  Were  not  the  majority  from  Miles'  Mill,  and  other  precincts  outside  of  the 
county  ? — A.  Those  that  came  from  Miles'  Mill  were  out  of  Aiken. 

Q.  Wa.s  not  a  majority  of  those  300  from  other  precincts  outside  of  Aiken  precinct  f — 
A.  I  did  not  notice  among  that  pile  to  see  who  were  from  Aiken  and  who  were  not. 

Q.  You  have  sworn  they  were  from  Aiken. — A.  I  don't  know  where  they  were  from. 
I  know  a  great  many  ;  some  that  were  not  from  Edgefield,  and  they  were  from  Edgefield. 

Q.  Were  these  three  hundred  men  and  over,  who  did  not  vote  on  that  day,  from 
Aiken  precinct  ? — A.  No,  sir ;  I  told  you  that  some  were  from  Miles'  Mill  that  they 
objected  to  and  would  not  let  vote. 

Q.  Was  any  of  them  from  Aiken  precinct? — A.  Yes,  sir. 

Q.  About  how  many  ? — A.  /  can  tell  you  for  certain  about  tchat  I  knoic  had  no  right 
here  ;  there  icere  about  twenty  or  thirty  that  I  know  hud  no  right  here  in  Aiken  precinct ;  they 
did  not  vote;  lean  be  certain  of  that. 

Q.  Were  these  twenty  or  thirty  refused  by  reason  of  challenge T — A.  Some  were  re- 


510  DIGEST    OF    ELECTION    CASES. 

fused  by  challenge,  and  some  were  refused.  I  forget  now  what  was  the  reason,  and 
some  could  not  get  in  of  those  I  told  you;  and  after  that  cutting  was  going  on  there, 
they  said  they  were  afraid  of  their  life.  Some  that  I  gave  the  tickets  to  returned  the 
tickets  to  me  and  said  they  were  afraid  to  vote. 

Here  a  United  States  deputy  marshal,  appointed  in  the  interests  of 
"  a  free  ballot  and  a  fair  count,"  admits  distributing  tickets  to  persons 
whom  he  Jcnew  to  have  no  right  to  vote. 

The  next  charge  against  this  precinct  is  that  violence  of  language  and 
of  act  was  employed,  and  a  display  of  fire-arms  made  to  intimidate  Re- 
publicans. 

The  only  witness  complaining  of  the  usage  of  violent  and  abusive  lan- 
guage toward  him  is  E.  M.  Brayton.     At  p.  161  he  says : 

Q.  Give  some  of  the  threats,  if  you  please. — A.  Well,  it  is  not  easy  to  recall  the  pre- 
cise language  that  was  used. 

Q.  Well,  the  substance? — A.  The  substance  was  that  I  was  a  scoundrel,  and  that  I 
had  come  here  for  the  purpose  of  stirring  up  a  strife  amongst  the  people,  and  I  ought 
to  be  run  out  of  town.  One  man  would  say  he  wanted  a  lock  of  my  hair,  and  another 
would  suggest  to  clip  off  a  part  of  my  ear,  and  such  abusive  language. 

That  in  a  heated  contest  some  uncomplimentary  remarks  should  be 
made  by  somebody,  out  of  an  assemblage  of  more  than  a  thousand  voters, 
about  a  man  who  came  on  the  cars  from  a  remote  part  of  the  State  and 
tried  to  vote  in  a  county  in  which  neither  he  nor  his  family  had  resided 
for  nearly  four  years,  is  perhaps,  whether  justifiable  or  not,  rather  nat- 
ural. He  testifies  that  no  violence  was  done  to  him  ;  and  if  what  he  says 
above  be  taken  as  literally  true  and  unexaggerated,  it  is  hardly  suffi- 
cient to  require  that  the  poll  be  thrown  out.  That  some  allowance  is 
to  be  made  for  Mr.  Bray  ton's  statements,  however,  aside  from  the  height 
of  the  barricade  before  referred  to,  will  appear  from  the  following : 

Q.  What  was  the  appearance  of  the  poll  when  you  were  there? — A.  During  all  the 
time  there  was  a  boisterous,  turbulent  crowd,  cursing,  threatening,  and  brandishing 
weapons. 

Q.  Both  Republicans  and  Democrats  ? — A.  No,  sir ;  the  Republicans  were  very  quiet 
and  orderly  ;  these  were  Dext  ocrats ;  there  was  a  particular  time  when  they  seemed  to 
be  specially  excited  ;  that  was  on  my  return  to  the  poll,  from  the  time  when  I  first  went 
off;  I  came  back  to  the  poll  on  the  opposite  side  of  the  street  from  the  roll ;  as  I  got 
abreast  of  the  cannon  facing  Lawyer  Henderson's  office,  there  were  a  crowd  of  white 
men,  and  they  commenced  cajoling  and  talking  abusively  ;  as  I  passed  on  the  noise  in- 
creased ;  the  general  attention  of  the  crowd  seemed  to  be  directed  to  me.  After  that 
there  arose  a  scream  and  shout  towards  me,  aud  as  I  approached  near  the  corner  of 
the  poll  the  crowd  appeared  to  be  surging  towards  me,  and  as  I  reached  the  corner  it 
looked  as  if  I  was  going  to  be  surrounded  by  the  crowd — a  crowd  of  these  people. 

Q.  Democrats? — A.  Democrats;  coming  up  at  the  same  time  there  were  several 
white  men  who  appeared  from  their  badges  as  if  they  were  acting  as  peace  officers. 
I  walked  nearer  the  poll,  probably  going  about  thirty  feet  from  the  corner  ;  then  I 
stopped ;  a  crowd  came  running  to  me,  and  among  them  a  good  many  colored  people — 
Republicans — who  I  presumed  had  come  in  a  friendly  spirit,  for  the  purpose  of  giving 
me  protection  if  it  was  needed,  for  it  certainly  looked  as  if  it  threatened  to  result  in 
violence  and  trouble.  I  saw  a  good  many  of  these  white  men  with  weapons  in  their 
hands,  and  they  were  indulging  in  threats  and  jeers. 

Q.  Against  whom  ? — A.  Particularly  and  generally  against  me,  I  think.  The  sheriff 
also  up  to  that  time,  and  begged  and  pleaded  with  the  crowd  to  go  back,  and  he  kept 
close  to  me  for  the  purpose,  apparently,  of  protecting  me  if  there  was  danger.  That 
condition  of  affairs  continued  for  half  an  hour  or  three-quarters  of  an  hour,  I  should 
judge ;  it  appeared  during  all  that  time  that  trouble  was  imminent ;  these  various 
threats  could  be  heard  from  these  men  as  to  what  ought  to  be  done  with  me.  (Bray- 
ton's  deposition,  pp.  160,  161.) 

This  turbulent,  riotous,  and  perilous  scene,  not  substantiated  by  any 
other  witness,  is  thus  described  by  Sheriff  Holley,  at  p.  313 : 

Q.  Was  not  Mr.  Brayton  cursed  and  abused  by  white  Democrats? — A.  On  one  occa- 
sion only ;  he  was  around  the  polls  all  day  while  in  town.  A  few  persons  were  talking 
of  him  sneeritigly ;  as  soon  as  I  discovered  this,  I  walked  up  to  them  and  told  them  to  lei 
Brayton  alone,  and  they  did  so. 


SMALLS    VS.    TILLMAN.  511 

But  two  acts  of  actual  violence  are  charged  :  first,  that  some  colored 
men  were  cut  with  knives,  and.  secondly,  that  some  one  threw  pepper 
among  the  voters  in  the  barricade,  which  flew  into  their  eyes. 

One  man,  Sam  Harvey,  )S  shown  to  have  been  cut,  but  by  whom  or 
under  what  circumstances  does  not  appear.  Major,  whose  testimony 
as  to  the  cutting  has  been  partly  quoted  above,  says  it  was  done  while 
the  colored  i)eople  were  trying  to  get  in  at  the  exit  end  of  the  barricade 
to  vot«.  Short,  however,  who  claims  to  have  seen  it,  as  also  Johnson, 
were  under  the  impression  that  it  was  done  in  the  crowd  at  the  entrance 
end.  The  man  himself  swears  that  he  does  not  know  who  cut  him. 
Major,  though  he  swears  in  one  place  (p.  169)  that  it  was  done  by  "Dem- 
ocrats," swears  in  another  (pp.  170-1)  that  he  saw  but  one  man  have  a 
knife,  and  that  he  does  not  know  who  did  the  cutting.  On  the  other 
hand,  Mr.  Aldrich,  at  p.  303,  testifies  that  he  saw  colored  people  armed 
with  pistols,  clubs,  knives,  and  sticks,  and  having  knives  in  their  hands,, 
open. 

But,  whoever  did  the  cutting,  the  injured  man  afterwards  voted;  and 
no  one  else  claims  to  have  been  jirevented  from  voting  by  the  occurrence. 

No  other  man  who  was  cut  or  otherwise  injured  bj'  violence  through- 
out that  day,  except  the  sheriff,  was  either  i)roduced  or  named. 

As  to  the  pepper,  there  is  no  testimony  as  to  who  threw  it,  and  only 
one  witness  produced,  George  Knight  (pp.  18D-1),  who  professes  to 
have  been  struck  by  it.  This  witness  says  in  one  place  it  was  thrown 
from  a  window,  and  at  another  that  it  was  thrown  from  the  door,  and 
again  that  he  does  not  know  who  threw  it.  It  was  thrown  promiscu- 
ously into  the  barricade  where  the  Democrats  and  Kepublicans  were 
congregated  together,  if,  indeed,  it  was  thrown  at  all,  which  is  perhaps 
not  a  little  doubtful.  Contestee's  witnesses  who  were  at  the  polls  and 
in  and  out  among  the  voters  all  day  swear  that  they  never  heard  of  it 
until  some  time  after  the  election.  None  of  the  contestant's  witnesses 
claim  that  it  was  thrown  more  than  once,  nor  that  any  votes  were  lost 
to  contestant  by  reason  of  it. 

And,  indeed,  it  is  hard  to  see  upon  what  theory  this  committee  is 
asked  to  find,  in  the  absence  of  all  ijroof,  that  the  Democrats  were 
responsible  for  this  act,  if  such  act  there  was. 

As  to  the  display  of  fire-arms,  the  following  account  of  it  is  given  by 
contestee's  witnesses,  which,  as  itis  neither  denied  nor  varied  in  any  par- 
ticular by  any  statement  of  any  one  of  contestant's  witnesses,  must  nec- 
essarilv  be  taken  as  true : 

Mr.  Aldrich,  at  pp.  300,  301,  testifies : 

I  myselt  saw  a  considerable  number  of  colored  men,  marching  in  columns  of  fours, 
approaching  the  town  and  the  polls  by  the  Edgefield  roa<l.  They  were  in  command 
of  a  colored  man,  who  seemed  to  be  giving  orders.  This  company  of  men  were  yelling 
and  screaming,  and  brandishing  sticks  a«  they  approached  the  polls  ;  and  in  this  man- 
ner were  marching  to  the  polls.  Their  leader  had  on  a  blue  uniform — blue  shirt.  As 
these  men  marched  up  they  were  met  by  peace  officers.  I  heard  a  great  many  say  : 
"Stand  back!  stand  back!  don't  crowd  the  polls.  You  will  have  a  chance  to  vote. 
Take  your  position  and  go  in  in  your  regular  turn."'  This  company  pressed  right  on, 
the  head  of  it  then  quite  near  the  polls.  Then  I  heard  peremptory  orders  from  the 
peace  otficers  that  they  must  not  crowd  the  polls  in  that  manner.  The  excitement 
continued  to  grow.  I  saw  men,  white  and  colored,  running,  some  away  from  the  polls 
and  others  up  to  the  place  where  an  altercation  between  the  peace  officers  and  this 
company  seemed  to  be  going  on.  I  think  then  it  was  that  I  heard  this  officer  in  blue 
rallying  in  his  crowd.  A  riot  seemed  imminent.  Many  of  the  peace  officers  acted  with 
a  calmness  and  a  courage  that  I  have  seldom  seen  equaled.  It  seemed  that  all  remon- 
strance had  no  eftect  on  this  company.  I  saw  then  several  of  the  peace  officers  with 
guns  in  their  hands.  Such  officers  as'  had  guns  did  not  rush  on  this  crowd  or  company, 
but  stood  at  some  distance  on  the  opposite  side  of  the  street,  and  appeared  to  be  wait- 
ing developments.    There  were  a  good  many  peace  officers,  State  constables — county 


512  DIGEST    OF    ELECTION    CASES. 

officers,  high  sheriff  aud  his  deputies,  and  town  officials.  I  believe  that  this  appear- 
ance of  State  officers  aud  others  stopped  the  riot.  I  saw  a  demonstration  somewhat 
similar  to  first  which  happened  later  on  in  the  day,  iu  quelling  which  second  disturb- 
ance the  high  sheriff  was  struck  by  a  colored  man  and  Republican.  The  excitement 
then  was  at  a  great  height,  aud  some  ten  of  the  peace  officers  gathered  again  with 
their  guns,  and  the  turmoil  and  fuss  .subsided.  I  heard  no  gun  fired  during  the  day. 
I  saw  no  Democrat  assault  a  Republican;  saw  vervfew  men  arrested.  Put  up  three, 
I  think. 

Mr.  Aldrich  further  states,  at  p.  304,  that  each  of  the  constables  had 
on  the  regular  badge. 

The  sheriff,  at  pp.  311,  312,  says : 

Q.  Did  you  see  any  disturbance  that  day?  If  so,  give  an  account  of  it.— A.  Be- 
tween 1  and  3  o'clock  I  was  near  poll  and  heard  a  tremendous  yelling  on  the  main 
street  where  the  poll  was,  and  soon  after  I  saw  a  crowd  of  colored  people  coming, 
waiving  sticks  in  a  threatening  manner,  so  much  so  that  I  went  towards  them  and  met 
them  some  one  hundred  yards  from  the  polls ;  I  went  in  front  of  this  crowd  and  held 
up  my  hand  and  motioned  to  keep  quiet  that  I  might  talk  with  them ;  I  stood  there 
till  they  advanced  so  near  that  I  had  to  get  out  of  way  or  be  hit  with  their  sticks ;  I 
got  out  of  their  way  and  stood  one  side  until  partof  the  column  had  passed,  still  vvav- 
ing  my  hands  to  them,  but  they  did  not  heed  me  ;  kept  on  towards  the  poll ;  I  then 
started  off  in  a  fast  gait  to  get  again  to  the  head  of  the  column,  where  quite  a  crowd 
was  waiting  to  vote ;  I  got  then  near  entrance  to  poll,  and  I  saw  that  the  whites  were 
excited ;  so  were  the  blacks ;  I  told  them  I  would  preserve  order,  and  I  walked  back 
into  crowd  and  commenced  to  talk  to  theui  again,  appealing  to  them  to  keep  quiet,  or 
they  by  their  conduct  would*bring  on  bloodshed  ;  in  getting  back  some  thirty  yards  I 
met  up  with  a  colored  man,  John  Mosely,  who  was  extremely  unruly,  and  as  I  had 
known  him  all  ray  life,  addressed  him  kindly,  advising  him  not  to  go  on  as  he  was 
doing,  as  it  was  unnecessary,  and  as  the  sworn  peace  officer  I  must  keep  it,  upon 
which  he  raised  his  stick  and  flourished  it  over  his  head  and  said,  "I'll  be  God  damned 
if  I  don't  die  right  here."  I  said,  "That  is  foolish,"  and  I  intended  to  preserve  peace  ; 
wanted  him  to  so  understand  ;  he  then  drew  his  stick,  a  very  heavy  hickory  stick,  iu 
right  hand,  and  with  his  left  struck  me  in  the  breast ;  his  drawing  the  stick  over  ray 
head  led  me  to  think  he  intended  to  hit  me  with  it ;  as  he  pushed  me  back  with  his 
left  hand  I  caught  hold  of  him ;  the  crowd  then  surged  upon  us ;  not  knowing  what 
for,  I  drew  my  pistol,  believing  they  intended  to  rescue  him  or  assault  me,  but  when 
I  drew  pistol  and  told  crowd  to  stand  back  they  got  out  of  my  way ;  about  that  time 
Mr.  Wingard  and  others  came  to  my  assistance  and  we  carried  him  to  guard-house. 
After  putting  him  up  Mr.  Wingard  said,  "We  will  havetoj^ut  up  Arriugton  t-^  saA^e  a 
difficulty  ;  "  he  was  in  command  of  this  riotous  crowd,  giving  orders,  «fec.  We  took 
him  and  locked  him  up.     That  ended  the  disturbance  for  that  day. 

See  also  the  testimony  of  D.  S.  Henderson  (pp.  283  and  287),  James 
T.  Wingard  (p.  309),  and  O.  0.  Jordan  (pp.  314,  315). 

It  is  worthy  of  note  that  although  this  riot  and  the  display  of  arms 
upon  the  part  of  the  State  constables,  by  which  it  was  quieted,  took 
place  during  his  stay  at  the  polls,  E.  M.  Brayton,  the  only  witness  of 
any  intelligence  and  respectability  produced  on  behalf  of  contestant 
as  to  this  poll,  makes  no  reference  to  either  in  his  entire  deposition. 
His  disposition  and  anxiety  to  color  the  case  as  strongly  as  possible  for 
contestant  is  apparent  in  every  sentence  his  deposition  contains,  iu 
view  of  which  fact  his  silence  as  to  this  armed  "  demonstration"  is  too 
significant  to  require  comment. 

The  remaining  charge  against  this  precinct  is  that  a  cannon  was 
placed  in  the  vicinity  of  the  poll,  and  used  to  intimidate  and  overawe 
Eepublicans. 

In  his  notice  of  contest  the  contestant  claims  that  this  cannon  was 
loaded  ;  but  no  offer  of  proof  to  this  effect  was  made. 

But  three  of  contestant's  witnesses  speak  of  this  gun,  aud  they  are 
Brayton,  Major,  and  George  Washington  Short. 

Brayton's  testimony  on  this  point  (p.  160)  is  as  follows : 

What  seemed  to  me  unusual  was  the  appearance  of  a  mounted  cannon  facing  the 
poll. 


SMALLS    VS.    TILLMAN.  513 

Q.  How  far  away  ? — A.  About  seventy-five  feet  from  the  poll ;  two-thirds  of  the  way 
across  the  street  from  the  poll  was  iu  a  liue  with  the  canuou.  There  was  a  collection 
of  white  people  standing  by  the  cauuou  on  the  other  side,  and  they  xctre  pretty  thickly 
massed  between  that  and  the  poll. 

Q.  Did  any  of  these  people  standing  around  the  cannon  appear  to  have  charge  of 
it  ? — A.  Not  at  that  time. 

Q.  What  building  or  office  was  this  cannon  stationed  near  or  in  front  of? — A.  In 
front  of  Lawyer  Henderson's.  It  was  almost  iu  a  direct  line  between  that  office  and 
the  poll. 

Ko  Other  "  time  "  is  mentioned  by  tliis  witness  at  which  anybody  did 
appear  to  have  charge  of  it.  The  ever-faithful  Major,  liowever,  testi- 
fies, at  pp.  169,  170,  and  172,  as  follows  : 

Q.  Did  you  see  any  men  in  charge  of  the  gun  during  the  day,  or  handling  it  ? — A. 
Yes,  sir. 

Q.  Democrats  or  Republicans ? — A.  Democrats;  Republicans  ain't  got  anything  to 
do  with  that. 

Q.  Did  you  see  any  men  with  guns  in  their  hands  ? — A.  Yes,  sir.     *     »     * 

Q.  What  did  they  do  with  their  guns  ? — A.  They  formed  in  line. 

Q.  By  the  cannon  ? — A.  Yes,  sir. 

Q.  Who  was  in  command  of  them  ? — A.  I  don't  know  the  commander,  I  just  seen 
them ;  I  don't  know  who  commanded  them,  but  I  know  them  every  one.     »     «     * 

Q.  Was  there  any  firing  of  guns  or  cannon  or  pistols  during  the  night  before  the 
election  or  the  day  of  election  » — A.  The  day  of  election  the  cannon  was  fired. 

Q.  AVhat  time  ? — A.  Along  between  three  and  four ;  I  was  in  bed  when  I  heard  it. 

Q.  Shoot  many  times  f — A.  I  never  heard  it  but  that  one  time. 

Q.  Heard  any  other  firing  ? — A.  No,  sir ;  they  did  not  fire  any  that  day,  after  I  heard 
it  that  morning. 

Cross-examined : 
Q.  Was  this  cannon  in  position  when  you  first  came  up  T — A.  Yes,  sir. 
Q.  You  know  who  carried  it  there  ? — A.  No,  sir. 
Q.  Was  it  loaded  ! — A.  Well,  I  don't  know  that. 

Q.  Was  there  a  gun  or  pistol  fired  in  or  about  the  poll  that  day  from  the  time  it  was 
opened  ? — A.  I  did  not  hear  it. 

George  Washington  Short's  testimony  as  to  the  cannon  (p.  174)  is 
the  following : 

Q.  Do  you  know  of  any  violent  demonstration,  such  as  the  firing  of  cannon,  pistols, 
or  the  display  of  knives  f— A.  I  know  this :  just  about  good  daylight  the  last  cannon 
was  fired. 

Q.  How  many  times  did  you  hear  the  cannon  fire  f — A.  Just  between  5  and  6  in  the 
7norning,  to  my  recollection,  the  cannon  teas  fired  six  times. 

All  the  other  witnesses,  on  both  sides,  agree  that  this  giin  was  fired 
but  once  on  the  day  of  election,  and  all  agree  that  this  was  not  later 
than  4  o'clock  in  the  morning.  Evidently  this  witness  does  not  derive 
his  name  from  any  close  moral  resemblance  to  his  illustrious  namesake. 

Again,  at  pp.  174,  175  he  says : 

At  the  time  while  that  was  going  on  I  threw  my  eyes  over  the  street,  and  there  was 
a  military  company  with  guns. 

Q.  Bayonets  fixed  ? — A.  Yes,  sir;  and  cannon  fixed. 

Q.  Cannon  bearing  on  anything  f — A.  Yes,  sir;  bearing  upon  the  colored  voters,  so 
if  it  was  fired  it  would  have  cut  them  down. 

No  other  witnessjon  either  side  saw  a  bayonet  that  day.  And  see  the 
testimony  of  Mr.  Aldrich,  at  p.  305,  and  of  the  town  marshal,  at  p.  311. 
Finally,  at  p.  175,  Short  continues : 

I  ;I  saw  Lon3  Cutner  go  and  move  the  cannon  more  in  a  position  upon  us.  I  looked 
npon  him  and  saw  when  he  done  it.  The  whites  were  crowding  down  on  the  colored 
with  guns  and  pistols  iu  their  hands. 

No  other  witness  saw  this  incident  as  to  the  cannon,  and  no  other 
claims  that  the  whites  at  any  time  moved  toward  the  colored  people 
with  either  guns  or  ])istols  in  their  hands.     At  the  only  time  when  any 
H.  Mis.  35 33 


514  DIGEST    OF    ELECTION    CASES. 

guns  were  seen,  namely,  at  the  time  of  the  riot,  the  testimony  is  con- 
clusive and  uncontradicted  that  the  State  constables  who  had  them 
"did  not  rush  on  this  crowd  or  company  [i.  e.,  the  rioters],  but  stood  at 
some  distance  on  the  opposite  side  of  the  street  •  *  *  *  uever  ap- 
proaching any  Kepublicans;  remained  on  the  opposite  side  of  the  street.'^ 
(See  pp.  300,  305,  310.) 

Before  parting  with  Short,  it  may  be  as  well  to  note  the  fact  that  every 
material  allegation  in  his  deposition  is  refuted  by  either  contestant's 
own  witnesses  or  those  of  contestee,  and  frequently  by  both.  His  order 
of  intelligence  may  be  fairly  estimated  from  the  following  extract  taken 
from  his  deposition,  at  p.  176 : 

When  these  men  went  up  to  vote  there  were  men  there  that  asked  them  if  they 
could  vote ;  when  I  went  up  to  vote  Mr.  Kline  said,  "  Ain't  you  Jacob  Jenkins  ?"  I 
said,  "  No,  sir ;  my  name  is  George  Washington  Short.  They  generally  call  me  Jacob 
for  short ;  I  suppose  it  is  a  too  great  honor  to  give  me  my  ex-name." 

His  character,  and  that  of  two  other  of  contestant's  principal  wit- 
nesses, is  thus  stated  by  Mr.  Aldrich,  at  p.  305 : 

James  Major,  George  Washington  Short,  and  Jack  Kobinson  I  have  seldom  seen  at 
any  work — never  at  steady  work ;  so  far  as  Major  is  concerned,  about  elections  is  very 
busy,  and  election  matters.  George  Washington  Short  saws  a  little  wood  occasionally. 
He  loafs  most  of  his  time.  Jack  Eobinson — never  saw  him  strike  a  lick  of  work  in 
his  life. 

This  charge  as  to  the  cannon,  it  will  be  observed,  rests  almost  wholly 
upon  the  testimony  of  these  two  men.  Major  and  Short.  Brayton  tes- 
tifies only  as  to  its  location,  which  is  not  denied.  The  testimony  upon 
the  other  side  effectually  disproves  any  improper  intention  or  effect. 
And,  indeed,  no  witness  testifies  that  he  was  intimidated  by  it,  or  that 
any  objection  or  complaint  was  made  about  it  by  any  one  until  after  the 
election. 

D.  S.  Henderson,  pp.  282  et  seq.,  testifies  : 

Q.  It  has  been  said  a  loaded  cannon  was  pointed  at  the  poUs,  and  was  put  there  by 
Democrats  to  intimidate  colored  voters  T — A.  That  cannon  was  brought  to  Aiken  for 
a  public  celebration,  some  time  short  while  previous  to  election;  it  was  carried  to 
depot  before  election  to  return  to  Augusta  ;  and  it  was  from  some  cause  not  sent  by 
railroad  company,  they  not  having  car  suitable  just  then.  On  night  before  election 
there  was  a  meeting  in  town,  a  procession,  ifec,  and  some  of  the  young  men  of  the 
town  brought  it  up-town  and  fired  it  off,  and  it  was  left  there.  Besides  that  cannon 
there  was  another  not  fifty  yards  from  it,  which  has  been  often  used  on  public  occa- 
tions,  and  just  as  formidable  as  the  other,  which  has  been  there  for  several  elections, 
and  is  there  now  in  the  street,  not  over  seventy-five  yards  from  where  the  polls  were 
held.  As  far  as  the  cannon  from  Augusta  being  loaded,  1  know  that  no  such  thing  as 
grape,  ball,  or  buck-shot  was  about  it ;  there  was  not  even  any  powder  with  it ;  it 
was  not  loaded,  for  men  were  using  the  staff  in  it  all  day  ;  and  I  will  say  right  here 
that  it  is  all  foolishness  to  say  that  this  cannon  was  pointed  on  Republican  voters  at 
the  polls,  for  there  was  all  the  time  more  white  men  in  the  crowd  than  negroes,  and 
in  the  room  there  were  more  Democrats  than  Eepublicans. 

Brayton,  it  will  be  observed,  testifies  that  the  whites  were  pretty 
thickly  massed  between  the  cannon  and  the  polls.  Only  Short  denies 
it. 

The  witness  continues : 

Q,  As  a  matter  of  fact,  do  you  not  know  that  no  man  was  frightened,  white  or  black, 
by  that  cannon  ? — A.  No  one  was  frightened  by  it ;  I  was  in  crowd  aU  day,  and  saw 
no  one  show  any  uneasiness  about  it. 

Q.  What  time  was  the  cannon  fired  ? — A.  I  cannot  say ;  I  heard  it,  perhaps,  after 
midnight. 

Q.  Do  you  know  whether  it  was  fired  by  instructions  of  leading  Democrats  ? — A.  I 
do  not  know,  nor  do  I  think  so. 

Q.  Did  you  hear  it  stated  during  the  day  of  election  that  it  was  loaded  ? — A.  I  did 
not. 


SMALLS   VS.    TILLMAN.  515 

Q.  Did  yon  hear  any  colored  men  say  that  it  was  loaded  ? — A.  I  heard  no  one  say 
that  it  was  loaded ;  in  fact  I  believe  they  knew  it  was  not. 
Q.  Was  any  eftort  made  to  take  that  cannon  away  ? — A.  No. 

Mr.  Aldrich,  at  p.  301,  says : 

Q.  Something  has  been  said  of  a  cannon  ;  do  yon  know  anything  of  this? — A.  That 
cannon  was  brought  over  here  some  time  previous  to  the  election,  for  the  purpose  of 
firing  salutes  at  a  Democratic  State  meeting  the  day  candidates  for  State  offices  spoke 
here.  It  was  to  have  gone  back  to  Augusta,  but  for  some  reason  the  railroad  did  not 
carry  it  back — short  of  cars,  or  something  of  that  kind.  I  saw  it  at  depot  just  pre- 
vious to  election.  Some  procession  had  it  shortly  before  election ;  it  was  brought  from 
depot,  and  a  salute  was  tired  with  it.  It  stood  in  the  street  some  time — for  several 
days,  I  think — before  election.  I  would  state  that  near  the  place  this  cannon  stood 
is  another,  in  the  street,  belonging  to  Var  M'Fitch,  which  he  bought  and  gave  to 
some  young  men  of  the  town.  It  is  now  still  in  the  streets,  and  has  been  there  for 
several  years.  I  passed  by  the  cannon ;  nobody  seemed  to  control  it ;  no  ammunition 
that  I  heard  of.  If  I  remember  correctly,  in  the  morning  some  half-grown  boys  were 
sitting  on  it  and  playing  with  it,  and  I  think  they  turned  it  toward  the  box ;  I  told 
them  to  clear  out. 

Q.  Were  there  not  a  great  many  white  men  in  the  crowd  ? — A.  Yes ;  a  great  many 
white  people,  and  they  were  between  the  colored  people  and  cannon.  The  barricade 
run  north  and  south ;  the  voters  approached  at  north  end ;  the  colored  people  gathered 
at  northeast  and  Democrats  at  northwest ;  cannon  was  west  of  box  ;  had  it  been  fired 
to  injure  colored  men  before  the  charge,  had  it  been  loaded,  it  would  have  had  to 
pass  through  this  body  of  the  whites.  If  any  colored  man  or  Republican  was  afraid 
of  that  cannon,  I  never  heard  of  it.  No  one  was  in  charge  of  it  at  any  time,  and  the 
only  use  I  saw  it  put  to  was  to  tise  it  as  a  seat  by  some  persons  who  got  tired. 

Cross-examined,  p.  304 : 

Q.  How  many  days  before  election  did  you  see  it? — A.  I  think  several  days.  I  may 
be  mistaken.  When  it  was  used  it  was  generally  left  where  last  fired  ;  its  being  near 
the  polls  was  an  accident.  It  was  the  intention  to  open  the  poU  on  another  street, 
but  this  idea  was  abandoned  day  before  election. 

See  also  testimony  of  the  town  marshal,  p.  310,  and  that  of  the  sher- 
iff, pp.  312-314. 

It  is,  of  course,  impossible  to  reproduce  all  the  testimony  here,  and 
the  bulk  of  the  record  precludes  the  hope  that  the  committee  will  be 
able  to  give  the  whole  of  it  any  very  careful  examination  and  analy- 
sis. The  foregoing  review  of  it,  however,  makes  it  perfectly  clear,  we 
think,  that  the  Republican  supervisor  at  this  precinct  was  afforded 
every  reasonable  facility  for  the  performance  of  his  duties;  that  the 
crowded  condition  of  the  polls  was  due  wholly  to  the  unnecessary  and 
unreasonable  massing  of  Republicans  at  this  precinct,  and  that  it  was 
not  accompanied  by  any  discrimination  in  favor  of  Democratic  voters ; 
that  instead  of  retarding  the  casting  of  ballots,  the  number  of  votes  re- 
ceived prove  the  managers  to  have  been,  under  all  the  circumstances, 
remarkably  expeditious ;  that  the  amount  of  violence  shown  is  small 
for  a  heated  election  and  an  overcrowded  poll,  and  that  no  part  of  what 
violence  there  was  is  either  proved  to  have  been  committed  by  Demo- 
crats or  shown  to  have  damaged  the  contestant ;  that  the  display  of 
fire-ams  complained  of  was  not  only  a  justifiable  but  an  exceedingly 
temperate  and  commendable  proceeding  upon  the  part  of  the  proper  of- 
ficers to  suppress  a  most  disgraceful  riot  inaugurated  and  conducted  by 
the  adherents  of  the  contestant,  and  carried  to  the  extent  of  resisting 
and  bodily  assaulting  the  sheriff  of  the  county  while  in  the  discharge  of 
his  duty ;  and  that  tbe  cannon  referred  to  in  the  notice  of  contest  and 
in  the  testimonj^  was  lett  in  the  vicinity  of  the  polls  innocently,  after 
being  used  in  a  procession  the  night  before,  and  without  either  the  pur- 
pose or  the  effect  of  intimidating  anybody,  or  preventing  the  casting  of 
a  single  vote  for  the  contestant. 

The  review  to  the  testimony  as  to  this  precinct  has  been  made  so 


516  DIGEST    OF    ELECTION    CASES. 

elaborate  solely  because  of  the  grave  character  of  the  charges  made 
against  it,  and  not  because  of  its  importance  upon  the  result  of  the  elec- 
tion. The  witness  Major  claims  that  about  three  hundred  Republic- 
ans were  prevented  from  voting  by  reason  of  the  crowd ;  but  the 
character  and  unreliability  of  Major's  testimony  has  been  sufiSciently 
illustrated.  Mr.  Aldrich,  at  p.  301,  testifies  that  at  the  closing  of  the 
polls  there  were  only  about  seventy-five  or  one  hundred  men  left  at 
the  entrance  to  the  polls,  and  that  among  them  he  recognized  some  who 
had  already  voted;  and  Mr.  Henderson's  testimony  (p.  282)  is  to  the 
same  effect.  This  estimate  is  corroborated  by  the  following:  Both  Mr. 
Brayton  (p.  164)  and  Sheriff  Holley  (p.  313)  estimate  the  colored  people 
around  the  poll  that  day  at  from  400  to  500,  some  of  whom,  however, 
Mr.  Holley  says,  were  Democrats.  And  of  the  Republicans  the  returns 
show  that  383  voted ;  the  remaining  75  or  100,  if  counted  for  contestant, 
would  not  affect  the  general  result. 

The  precinct  has  uniformly  been  Democratic  since  1876. 

It  only  remains  to  add  that  not  a  man  who  was  prevented  by  intimi- 
dation or  violence  of  any  kind  at  this  precinct  is  either  produced,  named, 
or  in  any  manner  referred  to.  Yet  at  page  33  of  the  majority  report 
contestee's  majority  here  also  is  thrown  out. 

The  extent  to  which  the  foregoing  summary  of  the  evidence  relating 
to  the  two  precinctsof  Edgefield  Court-House  and  Aiken  Court-House 
has  drawn  out  this  report  illustrates  the  impossibility  of  anything  like 
a  fair  review  of  the  conflicting  testimony  as  to  the  hundred  or  more  pre- 
cincts in  the  fifth  Congressional  district.  We  can  only  again  refer  to 
the  full,  and,  we  would  add,  very  fair  summary  of  and  references  to  it 
contained  in  contestee's  brief;  to  facilitate  resort  to  which,  for  the  pur- 
poses of  fuller  examination  than  can  be  here  given,  we  append  to  this 
report  an  index  of  reference  to  the  pages  of  the  brief  in  question,  in 
which,  unlike  the  majority  report,  the  testimony,  not  on  one  but  on 
both  sides  is  collated,  and  the  pages  of  the  record  noted  at  which  the 
full  text  of  the  depositions  of  all  the  witnesses  will  be  found.  In  the 
opinion  of  the  undersigned,  the  testimony  of  contestant's  own  witnesses 
will  be  found  in  nearly  every  instance,  when  fairly  compared  with  itself, 
to  furnish  its  own  refutation,  and  to  require  slight  aid  from  the  testimony 
adduced  on  behalf  of  contestee  to  prove  the  groundlessness  of  the  grave 
charges  against  the  people  of  entire  counties  which  are  so  recklessly 
made. 

It  remains  to  consider  an  assumption  made,  and  mainly  relied  upon 
in  the  argument  on  behalf  of  contest,  which,  though  utterly  unsus- 
tained  by  the  evidence,  appears  also  to  have  passed  into  and  to  have 
formed  the  basis  of  the  majority  report,  viz,  the  assumption  that  all 
the  colored  voters  in  the  fifth  Congressional  district  of  South  Carolina 
were  adherents  of  the  contestant.  In  his  brief,  in  the  argument  before 
the  second  subcommittee  on  his  behalf,  and  in  the  majority  report,  the 
census  returns,  showing  a  majority  of  colored  voters  in  that  district,  is 
triumphantly  api^ealed  to  as  demonstrating  the  election  of  contestant, 
a  process  of  reasoning  which,  if  satisfactory,  and  if  only  thought  of 
early  enough,  might  well  have  saved  the  committee  the  labor  of  its  de- 
liberations, the  country  the  expense  of  the  contest,  with  its  voluminous 
testimony,  and,  indeed,  the  people  of  the  district  the  trouble  of  holding 
the  election  at  all. 

Upon  this  subject  the  fact  is  not  only  established  clearly  by  the  testi- 
mony taken  on  behalf  of  contestee,  but  conceded  by  contestant's  own 
witnesses,  that  the  sitting  member  was  largely  supported  by  colored  voters 
throughout  his  district  in  the  election  of  1880.    There  is  not  a  [)recinct  in 


SMALLS    VS.    TILLMAN.  517 

any  one  of  the  five  counties  referred  to  in  the  testimony  at  which  colored 
men  are  not  proved  to  have  voted  for  coutestee;  and  that,  too,  in  nearly 
every  case  by  contestant's  own  witnesses.  At  Aiken  Court-House  about 
one  hundred  colored  men  voted  the  Democratic  ticket  (p.  314) ;  at  Page 
&  Hankerson's  Store  a  majority  of  the  colored  people  who  voted  cast 
Democratic  ballots  (p.  273);  at  Meeting  Street  precinct  200  colored  men 
voted  with  the  Democrats  (pp.  551-2) ;  at  Millet's,  65  (p.  641) ;  at  Bal- 
doch,  50  (p.  636),  and  so  on  throughout  the  district.  In  Barnwell  County 
alone  1,372  colored  men  enrolled  themselves  in  Democratic  and  affiliated 
clubs  (p.  610) ;  and  at  Allendale  there  were  225  in  one  club  (p.  647). 
See  also  pp.  493,  576,  593,  644,  563-4,  63-4.  114,  116,  159,  216,  289,  295, 
298,  301,  305,  508,  321-2,  328,  329,  482,  484,  487,  502,  518,  525,  557-8, 
570,  580,  582,  623,  632,  637,  641,  644,  &c. 

One  of  these  Democratic  colored  men  was  fired  at  on  the  day  of  elec- 
tion by  a  Kepublican  at  Allendale  (p.  637) ;  another  was  ambushed  and 
hilled  on  his  way  from  the  polls,  at  Lawtonville  (571) ;  while  social  and 
religious  ostracism,  threats,  intimidation,  and  violence  were  resorted  to 
throughout  the  district  to  overawe  and  coerce  them.  See  pp.  317,  321, 
330,  332,  555-6,  562-8,  578-80,  582,  591-2,  623,  &c. 

II. 

Our  associates  of  the  subcommittee  have  figured  oat  a  majority  of 
1,489  for  the  contestant  in  the  Congressional  district,  excluding  entirely 
the  vote  of  Edgefield  County. 

In  their  statement,  however,  there  are  two  manifest  errors  which  they 
must  have  overlooked,  and  which  we  think  they  will  not  hesitate  to 
correct. 

1.  They  give  to  the  contestant  the  entire  vote  of  618  cast  at  Jackson- 
borough  precinct,  in  Colleton  County,  before  the  poll  there  was  closed. 
The  testimony  shows — and  there  is  no  conflict  whatever  upon  this  point — 
that  at  least  200  of  these  votes  were  cast  for  the  contestee,  and  not  more 
than  400  for  the  contestant.  (Rec,  346.)  We  think  it  too  plain  for 
argument  that  this  poll  should  not  be  counted  at  all,  and  that  the 
managers  and  commissioners  of  election  did  right  in  not  counting  it. 
But  assuming  for  the  present  that  it  ought  to  be  counted,  it  should  be 
at  least  counted  correctly,  400  for  the  contestant  and  200  for  the  con- 
testee. 

2.  The  whole  vote  of  276  at  Horse  Pen  precinct,  in  the  same  county 
of  Colleton,  is  likewise  given  to  the  contestant,  when  his  only  testimony 
in  regard  to  it  shows  that  it  gave  a  Democratic  majority  of  20. 

These  are  palpable  mistakes,  which  we  suppose  our  associates  of  the 
subcommittee  will  not  hesitate  to  rectify,  and  which,  if  allowed,  will 
reduce  the  contestant's  majority  to  775,  on  the  theory  of  our  associates. 

Now,  restoring  the  ijrecincts  of  Silverton,  Creed's  Store,  and  Wind- 
sor, in  Aiken  County,  which  our  associates  have  mistakenly  excluded 
on  the  ground  of  violence  and  fraud,  there  will  be  added  an  aggregate 
of  852  votes  for  the  contestee  and  26  for  the  contestant,  which  will  give 
the  contestee  a  majority  of  51  votes  in  the  Congressional  district,  exclu- 
sive of  Edgefield  County  and  the  disfranchised  precincts  in  other  coun- 
ties. 

Conceding  that  there  may  be  differences  of  opinion  in  reference  to 
various  other  precincts,  the  vote  of  Silverton,  Creed's  Store,  and  Wind- 
sor cannot  justly  be  excluded  upon  any  known  i)rinciple  of  the  law  of 
evidence. 


518  DIGEST  OF  ELECTION  CASES. 

The  vote  of  Silverton  is  excluded  upon  the  testimony  simply  of  a  man 
who  was  uot  there  during  the  day,  but  at  Low  Town  Wells,  and  who 
merely  passed  by  (not  through)  Silverton,  and  obviously  knew  nothing 
of  the  election  there  (Eec,  p.  130).  Creed's  Store  is  excluded  because  of 
a  personal  difficulty  that  occurred  there  late  in  the  afternoon  of  the  day 
of  election,  notwithstanding  that  it  is  admitted  by  all  the  witnesses  for 
the  contestant  that  not  a  single  vote,  except  that  of  one  idiot  challenged 
for  cause,  was  lost  to  him  at  the  precinct,  either  on  account  of  the  diffi- 
culty just  mentioned  or  for  any  other  cause  ('Rec,  pp.  73,182).  And 
the  precinct  of  Windsor  is  excluded  because  it  appears  that  the  Ee- 
publican  ticket-distributor  left  the  place  in  a  passion,  on  account  of  a 
personal  difficulty,  and  took  the  Eepublican  tickets  with  him. 

It  will  be  a  disgrace  to  our  system  of  government,  a  disgrace  to  our 
civilization,  and  a  mockery  of  justice  if  whole  communities  are  to  be 
disfranchised  upon  such  absurdly  trivial  grounds  as  these.  As  already 
stated,  we  do  not  think  that  our  associates  meant  to  do  this ;  we  think 
they  have  been  mistaken  or  imposed  upon. 

We  cannot  concur  in  the  exclusion  of  the  entire  vote  of  Edgefield 
County,  as  determined  on  by  our  associates.  We  do  not  see  why  it 
should  have  been  singled  out  for  punishment,  when  it  is  admitted  by 
our  associates  themselves  that  there  was  no  greater  manifestation  of 
violence  and  fraud  here  than  in  four  other  counties  of  the  district,  un- 
less it  be  that  Edgefield  County  gave  thecontestee  his  largest  majority; 
and  this  being  summarily  disposed  of,  it  is  easier  to  figure  upon  the  rest 
of  the  Congressional  district. 

The  official  vote  of  the  county  is  7,513,  and  the  official  majority  for  the 
contestee  is  5,421.  We  think  the  committee  should  pause  and  w^igh 
well  the  consequences  before  they  nullify  a  majority  like  this.  If  the 
contestee  is  to  lose  the  benefit  of  it,  and  of  numerous  precincts  in  other 
counties,  aggregating  one- third  of  the  vote  of  the  whole  district,  it  would 
be  much  more  just,  unless  some  political  exigency  demands  the  contrary, 
to  declare  the  whole  election  void  and  refer  the  contest  back  to  the 
people  than  to  seat  a  contestant  who  evidently  did  not  receive  a  ma- 
jority of  the  votes  cast,  and  whom  no  member  of  the  committee  can  be- 
lieve to  have  been  elected. 

The  contestant's  witnesses  testify  to  some  excessive  ballots  in  this 
county:  At  Landrum's  Store,  76  (Eecord,  p.  82) ;  at  Eichardsonville,  7 
(Rec,  p.  213) ;  at  Edgefield  Court-House,  15  (Eec,  p.  247)— 98  in  all. 
There  is  no  testimony  tending  to  show  which  party  was  responsible  for 
this  excess,  nor  is  there  any  pretense  that  the  excessive  votes  were  not 
fairly  drawn  out  in  accordance  with  the  law.  But  assuming  that  all 
these  excessive  ballots  were  cast  by  Democrats,  and  that  all  the  ballots 
drawn  out  were  Eepublican,  and  that  the  returns  should  be  corrected 
accordingly,  we  would  still  have  6,369  votes  for  Tillman  and  1,144  for 
Smalls,  or  a  majority  in  the  county  of  5,225  for  the  contestee. 

Xow,  if  it  should  be  held  that  by  reason  of  fraud  and  violence  this 
vote  cannot  be  held  to  show  the  true  sentiment  of  the  county,  that  the 
adherents  of  the  contestant  were  prevented  from  voting  for  him,  and 
that  the  contestee's  apparent  majority,  therefore,  should  not  avail  him, 
yet  the  fact  remains  that  the  contestee  had  a  majority  of  the  votes  actu- 
ally cast ;  and  in  the  face  of  such  a  majority  to  seat  the  contestant 
would  be  simply  an  outrage.  The  utmost  that  it  would  be  proper  to  do 
under  such  circumstances  would  be  to  refer  the  election  back  to  the 
l)eople  for  a  new  determination  of  it. 

Again,  if  it  should  be  held  that,  by  his  failure  to  send  up  to  the  gov- 
ernor and  secretary  of  state  the  poll-lists  and  precinct  returns  of  the 


SMALLS    VS.    TILLMAN.  519 

several  precincts,  in  accordance  with  the  merely  directory,  and  not 
mandatory,  requirements  of  the  law,  the  chairman  of  the  board  of  county 
canvassers  could  destroy  the  reliability  of  the  ofiQcial  statement  of 
the  election  made  by  the  board  in  its  official  character,  and  concurred 
in  by  all  the  members,  including  the  Republican  member  of  the  board— 
a  proposition  which  no  amount  of  special  pleading,  confused  argument, 
or  violent  declamation  can  successfully  establish — it  is  nevertheless 
conceded  that  the  contestee  is  entitled  to  the  benefit  of  such  votes  in 
the  county  as  are  proved  aliunde  to  have  been  cast  for  him.  Outside  of 
the  certificate  the  record  shows  986  votes  in  the  county  for  the  contestee 
and  15  for  the  contestant,  as  follows:  At  Edgefield  Oourt-House,  763 
votes  for  Tillman  and  15  for  Smalls  (Rec,  pp.  246-250);  at  Cheatham's 
Store,  3  votes  for  Tillman  (Rec,  p.  538 ) ;  at  Meeting  Street,  200  colored 
votes  for  Tillman  (Rec,  p.  551);  and  at  Red  Hill,  20  colored  votes  for 
Tillman.  To  this  vote,  under  the  theory  of  our  associates  themselves,  the 
contestee  is  entitled,  as  proved  by  the  record,  outside  of  the  certificate ; 
and  upon  this  theory,  without  the  votes  of  the  precincts  of  Silverton, 
Creed's  Store,  and  Windsor,  to  which  reference  has  been  made,  taking 
into  account  the  evident  mistake  of  our  associates  as  to  Jacksonborough 
and  Horse  Pen,  the  contestee  would  still  have  a  majority  of  196  votes 
in  the  Congressional  district,  as  follows : 

Smalls. 

Small's  majority,  as  per  majority  report 1,489 

Deduct  Jacksonborough 618 

Deduct  Horse  Pen 276 

894 

595 

Add  Jacksonborough,  Tillman 200         400 

Add  Horse  Pen,  Tillman 20 

Add  Edgefield  County,  Tillman 986  15 

1,206      1,010 
Majority  for  Tillman,  196. 
Restoring  Silverton,  Creed's  Store,  and  Windsor,  aggregating 852  26 

2, 058      1, 036 
Majority  for  Tillman,  1,022. 

III. 

In  justice  to  the  contestee,  and  to  his  counsel  who  prepared  his  brief, 
we  are  compelled  to  call  attention  to  some  grossly  inaccurate  statements 
in  the  report  of  our  associates,  which,  though  comparatively  unimpor- 
tant in  themselves,  serve  to  show  with  what  little  care  our  associates 
examined  the  questions  before  them. 

On  p.  49  it  is  said :  "  These  facts  are  admitted  with  a  boastful  frank- 
ness on  p.  83  of  the  contestee's  brief."  No  such  admission  and  no  such 
boastful  frankness  appear  on  p.  83  or  any  other  page  of  contestee's 
brief. 

On  p.  43  of  the  report  it  is  said :  "  It  is  objected  on  behalf  of  the 
contestee  that  there  is  no  notice  of  contest  as  to  Barnwell  precinct,  in 
the  county  of  Barnwell."  No  such  objection  was  ever  made  in  the  con- 
testee's brief  or  outside  of  it,  as  far  as  we  are  aware.  On  the  contrary, 
on  p.  87  of  contestee's  brief  it  is  stated  that  "  Barnwell  Court-House 
is  one  of  the  precincts  most  frequently  mentioned  in  the  notice  of  con- 
test." 

These  and  numerous  other  conspicuous  inaccuracies,  for  which  there 


520  DIGEST   OF   ELECTION    CASES. 

is  neither  excuse  nor  justification,  together  with  the  grossly  partisan 
and  one-sided  citations  of  testimony  in  which  the  report  of  our  asso- 
ciates abounds,  would  strongly  dictate  the  propriety  of  withdrawing 
and  revising  it.  The  action  of  our  associates  presents  a  dangerous  prec- 
edent, which  may  react  upon  them.  We  find  nothing  in  the  record  to 
authorize  the  unseating  of  the  contestee. 
We  therefore  recommend  the  adoi)tion  of  the  following  resolutions  : 

1.  Eesolved,  That  Kobert  Smalls  was  not  elected  as  a  Eepresentative 
to  the  Forty-seventh  Congress  of  the  United  States  from  the  fifth  Con- 
gressional district  of  South  Carolina,  and  is  not  entitled  to  occupy  a 
seat  as  such. 

2.  Eesolved,  That  George  D.  Tillman  was  duly  elected  as  a  Eepresenta- 
tive from  the  fifth  Congressional  district  of  South  Carolina,  and  is  en- 
titled to  retain  his  seat  as  such. 

L.  H.  DAVIS. 
S.  W.  MOULTON. 
GIBSON  ATHEETON. 


SAMUEIi  liEE         JOHN  8.  RICHARDSON. 

FiEST  Congressional  District  of  South  Carolina. 

Contestant  charges  that  fraud,  violence,  and  intimidation  were  ijracticed  on  behalf 
of  coutestee;  that  false  and  fraudulent  returns  were  made ;  that  legal  and  proper 
returns  were  wrongfully  rejected ;  that  ballot-boxes  were  stuffed  with  tissue  bal- 
lots in  the  interests  of  contestee :  that  no  proper  returns  were  made  from  Darling- 
ton and  other  precincts,  but  a  large  vote  was  counted  from  that  precinct  which 
should  be  rejected ;  and  that  United  States  supervisors  of  election  were  hindered 
and  prevented  from  discharging  their  duties. 

Held,  that  fraud,  violence,  and  intimidation  were  practiced,  an  dfraudulent  returns 
were  made,  which  must  be  corrected  as  the  vote  is  proven  to  be. 

That  full  effect  must  be  given  to  returns  which  were  unlawfully  rejected. 

The  evidence  is  not  suflScient  to  reject  the  return  from  Darlington  precinct ;  besides 
there  is  no  evidence  in  the  record  tending  to  show  how  the  vote  would  then 
stand  if  the  return  was  rejected. 


[Note. — This  case  was  reported  to  the  House  on  February  24,  1883, 
and  was  under  consideration  when  Congress  expired  by  limitation 
March  3.1 


Febrtjary  24,  1883. — Mr.  Calkins,  from  the  Committee  on  Elections, 
submitted  the  following 

HEP  OET: 

The  Committee  on  Elections,  to  whom  was  referred  the  contested-election 
case  of  Lee  vs.  Richardson,  from  first  Congressional  district  of  South 
Carolina,  having  had  the  same  under  consideration,  beg  leave  to  make 
the  following  report : 

Mr.  Pettibone,  from  the  committee,  has  prepared  an  elaborate  report, 
with  which  in  the  main  I  agree.    There  are  some  facts  fouud  to  which  I 


LEE    VS.    RICHARDSON.  521 

do  not  assent,  but  they  are  not  important  enough  to  need  extended 
notice.  The  main  difference  of  opinion  is  with  reference  to  Darlington 
precinct.  At  that  precinct  Richardson  received  1,271  votes,  and  Lee 
received  117.  I  do  not  think  the  evidence  is  sufficient  to  reject  this  re- 
turn ;  it  is  purely  a  question  of  evidence,  and  I  cannot  bring  myself  to 
believe  that  the  evidence  is  sufficient  to  justify  its  rejection.  There  is 
no  evidence  in  the  record  tending  to  prove  how  the  vote  would  stand  on 
the  theory  of  contestant,  if  the  return  was  rejected.  I  think  the  evi- 
dence with  reference  to  this  precinct  fairly  establishes  two  proposi- 
tions, viz :  First,  that  the  colored  voters,  on  the  morning  of  elec- 
tion, in  large  numbers,  took  possession  of  the  market-house  where 
the  elections  were  usually  held.  For  some  reason,  not  apparent, 
the  poll  was  opened  at  the  court-house,  instead  of  the  market-house, 
and  the  white  voters  at  the  opening  took  possession  of  it.  Attempts 
were  made  by  the  colored  voters,  early  in  the  day,  to  force  their 
'wn.y  to  the  box  to  vote,  which  seems  to  have  been  prevented  by  the 
white  voters  crowding  the  stairs  leading  to  the  box.  This  led  to  crimi- 
nation and  recrimination  and  considerable  confusion  and  excitement,  and 
a  rumor  seems  to  have  i)re vailed  among  the  colored  voters  that  several 
stands  of  arms  had  been  brought  to  the  town  the  night  before  the  elec- 
tion by  the  white  Democrats,  and  that  they  were  concealed  in  the  court- 
house and  in  Farley's  store.  Whether  this  was  so  or  not  is  immaterial 
in  the  view  which  I  have  taken  of  the  testimony.  There  was  no  physi- 
cal display  of  the  guns  on  the  day  of  election,  and  I  find  as  a  matter 
of  fact  that  probably  as  early  as  ten  o'clock,  and  certainly  not  later 
than  el6^'eu  o'clock  on  the  day  of  election  the  colored  voters,  under  the 
advice  of  one  Smith,  who  was  a  leader  and  man  of  influence  among 
them,  dispersed  and  did  not  attempt  again  to  vote  on  that  day  at  that 
poll.  The  danger  of  bodily  harm  was  not  sufficiently  imminent  to  war- 
rant this  course,  and  there  was  an  entire  lack  of  diligence  on  the  part 
of  these  voters  to  maintain  their  right  to  vote.  As  a  matter  of  law 
these  voters  had  a  right  to  vote  at  any  precinct  in  the  county ;  there 
was  another  voting  precinct  not  many  miles  from  Darlington,  and  there 
is  no  reason  given  why  they  might  not  have  voted  at  that  precinct  if 
they  were  driven  away  from  Darlington.  For  these  and  other  reasons 
I  am  persuaded  that  Darlington  should  remain,  and  therefore  submit 
the  following  resolutions,  in  which  a  majority  of  the  committee  concur: 
Resolved,  That  Samuel  Lee  have  leave  to  withdraw  his  papers,  and 
this  case  is  dismissed  without  prejudice. 


VIEWS    OF  THE   MINORITY. 

Held,  That  Darlington  preciuct  should  be  rejected,  and  Lee  be  declared  elected  by 
234  votes. 

Mr.  Pettibone,  from  the  Committee  on  Elections,  submitted  the  fol- 
lowing 

REPORT: 

ITie  Committee  on  Elections,  to  whom  was  referred  the  contested-election 
case  of  the  first  Congressional  district  of  South  Carolina,  having  had 
the  same  under  consideration,  beg  leave  to  report : 

The  district  is  composed  of  the  counties  of  Georgetown,  Sumter,  Will- 
iamsburg, Horry,  Darlington,  Marlboro',  Marion,  and  Chesterfield. 


522  DIGEST    OF    ELECTION    CASES. 

The  returns  of  the  State  board  of  canvassers  give  to — 

John  S.  Richardson 20,142 

Samuel  Lee 11,674 

Majority  for  Richardson 8,468 

The  contest  was  begun  by  the  contestant,  Samuel  Lee,  against  the 
sitting  member,  John  S.  Eichardson,  and  in  his  notice  of  contest  he 
alleges  the  following  grounds : 

let.  That  a  majority  of  the  legal  votes  polled  at  the  election  held  on  the  2d  day  of 
November,  1880,  in  the  first  Congressional  district  of  South  Carolina  were  cast  for 'me. 

2d.  That  owing  to  frauds,  violence,  and  intimidation,  committed  in  your  interest 
by  your  partisans  and  supporters  in  each  and  every  county  in  the  Congressional  dis- 
trict, the  true  result  of  the  election  was  defeated,  and  a  pretended  and  fraudulent 
majority  made  to  appear  for  you. 

3d.  That  the  returns  made  to  the  State  board  of  canvassers  by  the  commissioners 
of  elections  of  Sumter,  Williamsburg,  Georgetown,  and  Horry  Counties  do  not  con- 
tain true  and  correct  statements  of  the  votes  cast  for  a  member  of  Congress  in  said 
counties. 

4th.  That  according  to  the  returns  of  the  election  made  by  the  managers  of  election 
of  the  several  voting  precincts  in  the  counties  of  Sumter,  Williamsburg,  and  George- 
town I  received  a  majority  of  the  votes  cast  in  each  of  the  said  counties. 

5th.  That  in  Sumter  County  the  commissioners  of  election  illegally  refused  to  count 
and  canvass  and  include  in  their  statement  of  the  result  of  the  election  the  vote  cast, 
canvassed,  and  duly  returned  for  a  member  of  Congress  at  the  following  voting  pre- 
cincts, to  wit:  Sumter  No.  1,  Carter's  Crossing,  and  Rafting  Creek. 

6th.  That  in  Williamsburg  County  the  commissioners  of  election  illegally  refused  to 
count  and  canvass  and  include  in  their  statement  of  the  result  of  the  election  the  vote 
cast,  canvassed,  and  duly  returned  for  a  member  of  Congress  at  the  following  voting 
I  precincts,  to  wit :  Salters,  Gourdins,  and  Midway. 

7th.  That  in  Georgetown  County  the  commissioners  of  election  illegally  refused  to 
count  and  canvass  and  include  in  their  statement  of  the  result  of  the  election  the 
vote  cast,  canvassed,  and  duly  returned  for  a  member  of  Congress  at  the  foUowiug 
voting  precincts,  to  wit:  Upper  Waccamaw,  Lower  Waccamaw,  Santee,  Sampit, 
Choppee,  and  Pee  Dee  or  Birdfield. 

8th.  That  in  Horry  County  the  commissioners  of  election  illegally  refused  to  count 
and  canvass  and  include  in  their  statement  of  the  result  of  the  election  the  vote  cast, 
canvassed,  and  duly  returned  for  a  member  of  Congress  at  the  voting  precinct  of 
Martin  Hill. 

9th.  That  in  Sumter,  Williamsburg,  and  Georgetown  Counties,  at  the  following 
voting  precincts,  to  wit :  Lynchburg,  Mayesville,  Shiloh,  and  Privateer,  in  the  county 
of  Sumter,  and  Kingstree,  Gourdins,  Black  Mingo,  Greelyville,  Salters,  Cedar  Swamp, 
Prospect  Church,  Pipkins,  Andersons,  Scranton,  and  Grahams,  in  the  county  of  Will- 
iamsburg, and  Georgetown,  Upper  Waccamaw,  Sampit,  and  Carver's  Bay,  in  the 
county  of  Georgetown,  the  vote  actually  cast  for  me  was  larger  and  the  vote  actually 
cast  for  you  was  smaller  than  appears  on  the  face  of  the  returns  made  by  the  mana- 
gers of  election  at  the  voting  precinct  aforesaid;  that  the  difference  between  the  vote 
as  actually  cast  and  the  vote  as  returned  by  the  managers  aforesaid  arises  from  the 
fact  that  at  each  of  the  aforesaid  polls  numerous  ballots  bearing  your  name  for  Con- 
gress were  fraudulently  placed  in  the  ballot-box  for  the  purpose  of  creating  an  excess 
of  votes  over  voters,  and  thereby  compelling  the  managers  to  draw  out  and  destroy 
the  excess  of  ballots  thus  created,  in  order  to  reduce  the  number  of  ballots  in  the  box 
to  the  number  of  names  on  the  poll-list ;  that  in  drawing  out  of  the  box  at  each  poll 
the  excess  of  ballots  fraudulently  created  as  aforesaid  numerous  ballots  bearing  my 
name  for  Congress,  and  which  had  been  legally  voted,  were  drawn  out  and  destroyed 
and  in  their  place  was  counted  a  corresponding  number  of  ballots  with  your  name 
for  Congress  thereon,  which  had  not  been  legally  voted;  wherefore,  to  the  vote  re- 
turned for  me  by  the  managers  of  election  at  each  of  the  polls  aforesaid  should  be 
added  the  ballots  bearing  my  name  for  Congress  which  were  drawn  out  and  destroyed, 
and  from  the  vote  returned  for  you  at  each  of  the  i^olls  aforesaid  should  be  deducted 
a  corresponding  number. 

10th.  That  in  Marion,  Marlboro',  and  Chesterfield  Counties,  at  the  following  voting 
precincts,  to  wit :  Marion  Court-House,  Berry's  Cross-Roads,  Campbell's  Bridge,  Lit- 
tle Rock,  Friendship,  High  Hill,  Mt.  Nebo,  Marsbluff',  Arieal,  and  Stones,  in  the  county 
of  Marion,  and  Bennettsville,  Smithville,  Adamsville,  Brownsville,  Brightsville, 
Hebron,  Clio,  Red  Bluff,  and  Red  Hill,  in  the  county  of  Marlboro',  aud  Chesterfield 
Court-House,  Mt.  Croghan,  and  Hebron  Church  in  the  county  of  Chesterfield,  for  the 
causes  set  forth  in  the  preceding  paragraph  (No.  9)  the  vote  actually  cast  for  me  was 


larger  and  the  vote  actually  cast  for  you  was  smaller  tban  appears  on  the  face  of  the 
returns  made  l)y  the  managers  of  election  at  the  voting  precincts  aforesaid ;  wherefore, 
to  the  vote  returned  for  me  by  the  managers  of  election  at  each  of  the  polls  aforesaid 
should  be  added  the  ballots  bearing  my  name  which  were  drawn  out  and  destroyed, 
and  from  the  vote  returned  for  you  at  each  of  the  polls  aforesaid  should  be  deducted 
a  correspondiug  number. 

11th.  That  the  polls  required  by  law  to  be  held  at  Statebnrg,  in  Sumter  County, 
and  at  Griers,  in  Georgetown  Count  j',  were  not  opened,  because  the  managers  of  elec- 
tion, who  were  your  partisans  and  supporters,  and  members  of  the  political  party 
whose  nominee  you  were  for  Congress,  neglected  and  refused  to  act,  in  consequence  of 
which  numerous  voters  who  went  to  said  polls  for  the  purpose  of  casting  their  ballots 
for  me  for  Congress  were  deprived  of  the  opportunity  to  vote  for  me  for  Congress,  as 
they  intended  and  desired. 

12th.  That  at  Black  River  or  Brown's  Ferry  voting  precinct,  in  Georgetown  County, 
27G  votes  were  cast  for  me  and  20  votes  were  cast  for  you  ;  that  at  the  close  of  the 
poll  upon  opening  the  ballot-box  and  counting  the  vot«8  therein,  the  managers  found 
that  there  were  602  tickets  in  the  box  ;  that  this  excess  of  306  ballots  was  caused  by 
your  partisans  and  supporters  fraudulently  placing  in  the  ballot-box  thaj;  number  of 
small  tissue-ballots  bearing  your  name  for  Congress ;  that  when  it  was  ascertained 
that  the  ballot-box  had  been  stuffed  as  aforesaid,  a  controversy  arose  between  the  U. 
S.  supervisors  and  the  managers  as  to  the  duty  of  the  latter  under  the  circumstances, 
and  not  being  able  to  agree  the  managers  sealed  up  the  box  and  delivered  the  same 
to  one  of  the  8uper\dsors  without  making  a  canvass  and  return  of  the  votes  required 
by  law :  wherefore,  the  vote  cast  as  aforesaid  at  said  precinct  should  be  added  to  the 
vote  returned  for  you  and  for  me,  respectively,  by  the  commissioners  of  election  of 
Georgetown  Coiinty,  to  wit,  20  for  you  and  276  forme. 

13th.  That  at  Cberaw  voting  precinct,  in  Chesterfield  County,  the  poll-list  kept  by 
the  managers  of  election  and  their  clerk  was  falsified  in  your  interest  by  the  insertion 
thereon  of  116  fictitious  names,  and  for  the  names  thus  fraudulently  placed  on  the 
poll-list  a  number  of  ballots  bearing  your  name  for  Congress  were  surreptitiously 
placed  in  the  ballot-box  and  counted,  canvassed,  and  returned  for  you ;  wherefore 
from  the  vote  returned  for  you  at  said  precinct  should  be  deducted  the  number  of 
ballots  so  illegally  counted,  canvassed,  and  returned  for  you. 

14tli.  That  at  each  and  every  voting  precinct  in  the  counties  of  Chesterfield,  Horry, 
Marlboro',  Williamsburg,  Darlington,  and  Marion  numerousillegal  votes  were  east  for 
you  by  persons  not  qualilied  to  vote  and  by  persons  who  voted  more  than  once, 

15th.  That  at  each  and  every  precinct  in  the  counties  comprising  the  first  Con- 
gressioual  district  a  large  number  of  colored  voters  who  desired  and  intended  to  vote 
for  me  for  Congress  were  denied  that  right,  without  good  and  sufficient  cause,  by  the 
managers  of  election. 

16th.  That  throughotit  the  Congressional  district  the  supervisors  appointed  by  the 
circuit  court  of  the  United  States  to  represent  the  Republican  party,  whose  nominee 
for  Congress  I  was,  and  the  deputy  marshals  of  the  United  States  were  obstructed, 
hindered,  and  prevented  by  your  partisans  and  supporters  from  fully  and  freely  per- 
forming the  duties  required  of  them  by  the  laws  of  the  United  States. 

17th.  That  at  each  and  every  voting  precinct  in  the  eight  counties  comprising  the 
first  Congressional  district  all  the  managers  of  the  election  were  known  to  be  your  po- 
litical i)artisan8  and  supporters,  and  members  of  the  political  party  whose  candidate 
for  Congress  you  were ;  that  in  the  reception  and  rejection  of  votes  and  in  the  gen- 
eral management  and  conduct  of  the  election  the  managers  of  election  aforesaid  at 
each  and  every  poll  acted  in  your  interest  and  for  your  benefit ;  that  at  each  and 
every  precinct  where  there  was  an  excess  of  ballots  in  the  box  the  managers  of  elec- 
tion as  aforesaid  in  di-awing  out  such  excess  acted  in  your  interest,  manipulating  the 
ballots  in  such  a  way  as  to  draw  out  mostly  tickets  with  my  name  for  Congress 
thereon. 

18th.  That  in  Darlington  County  there  was  not  a  free  and  fair  election,  owing,  first, 
to  the  repeating,  illegal  voting,  and  ballot-box  stufliug,  which  was  committed  in  your 
interest  and  by  your  partisans  and  supporters  at  each  and  every  voting  precinct  in 
the  county ;  second,  at  Darlington  Court-House  poll,  Florence,  Effingnam,  James 
Cross-Roads,  Gum  Branch,  and  Timraonsville,  by  the  poll-list  being  falsified  by  the 
insertion  thereon  of  fictitious  names,  repeating,  violence,  intimidation,  illegal  voting, 
and  by  the  rejection  of  a  large  number  of  qualified  voters  who  desired  and  offered  to 
vote  for  me  for  Congress ;  wherefore  the  entire  vote  returned  as  having  been  cast  at 
each  of  the  above-named  polling  precincts  should  be  rejected  and  entirely  excluded. 

19th.  That  in  Darlington  County,  at  the  following  voting  precincts,  to  wit, 
Eflingham,  James  Cross-Roads,  Gum  Branch,  Timmonsville,  Lisbon,  Lydia,  Society 
Hill,  Leavenworth,  and  Mechanicsville,  for  the  causes  set  forth  in  paragraph  No.  9, 
the  vote  actually  cast  for  me  was  larger,  and  the  vote  actually  cast  for  you  was  smaller, 
than  appears  on  the  face  of  the  returns  made  by  the  managers  of  election  at  the 
voting  precincts  aforesaid ;  wherefore,  to  the  vote  returned  for  me  by  the  managers 


524  DIGEST    OF    ELECTIOX    CASES. 

of  election  at  each  of  the  polls  aforesaid  should  be  added  the  ballots  bearing  my 
name  which  were  drawn  out  and  destroyed,  and  from  the  vote  returned  for  j  ou  at 
each  of  the  polls  aforesaid  should  be  deducted  a  corresponding  number. 

20th.  That  at  Graham's  Cross-Roads,  Scranton,  and  Cedar  Swamp,  in  Williams- 
burg County,  the  ballot-boxes  were  stufied,  the  poll-lists  falsified  by  the  insertion 
thereon  of  fictitious  names,  violence,  intimidation,  repeating,  and  illegal  voting  com- 
mitted in  your  interest  and  by  your  partisans  and  supporters,  to  such  an  extent  that 
it  is  impossible  to  tell  how  many  legal  votes  were  cast  at  said  voting  precincts; 
wherefore  the  entire  vote  returned  as  having  been  cast  at  said  polls  should  be  re- 
jected and  entirely  excluded. 

To  the  notice  of  contest  the  sitting  member  filed  exceptions  and  an- 
swers as  follows : 

Sir:  In  reply  to  your  notice  of  intention  to  contest  my  seat  in  the  Forty-seventh 
Congress  of  tlie  United  States  as  a  member  from  the  first  district  of  the  State  of  South 
Carolina,  sesved  on  me  on  the  20th  day  of  December,  1880,  I  have  to  say — 

I.  That  I  deny  and  except  to  your  right  to  contest  my  seat,  either  in  your  own  be- 
half or  in  the  interest  of  the  voters  of  the  first  Congressional  district  of  the  State  of 
South  Carolina,  for  the  reason  that  you  were  not  at  the  time  of  the  general  election 
of  the  2d  of  November,  1880,  either  a  legal  voter  or  a  citizen  of  the  said  district  or  Stat«. 

I  allege  that  two  years  previous  ,to  said  election,  with  the  intention  of  removing 
from  South  Carolina,  you  sold  whatever  property  you  owned  in  South  Carolina  and 
removedwith  your  family  beyond  the  borders  of  said  State,  and  returned  to  the  said 
State  less  than  twelve  months  previous  to  said  election. 

II.  I  object  and  except  to  your  notice  so  far  as  you  charge  force  and  intimidation 
on  the  part  of  my  supporters,  because  you  do  not  specify,  as  the  law  and  practice  re- 
quire, or  pretend  to  specify,  a  single  instance  of  force  or  intimidation  committed  by 
any  of  my  supporters  anywhere  in  the  Congressional  district  on  any  of  the  voters  of 
said  district.  Nowhere  in  your  notice  do  you  state  who  was  forced  to  vote  for  me,  or 
who  was  intimidated  by  my  supporters  and  prevented  from  voting  for  you,  or  in  what 
manner,  place,  or  town* such  intimidation  was  had,  or  by  whom  it  was  done. 

III.  Because  your  specifications  of  grounds  of  contest  are  insufficient  in  law,  and  do 
not  set  forth  facts  sufficient  or  of  such  a  charact^^  as  to  enable  yon  to  contest  my  right 
to  said  seat.  And  not  waiving  my  aforesaid  exceptions,  but  expressly  reserving  and 
relying  on  the  same,  I  do  hereby  expressly  deny,  on  information  and  belief,  all  the 
charges  and  allegations  in  your  said  notice  contained  and  set  forth,  and  require  you 
to  prove  the  same,  except  as  hereinafter  admitted. 

To  the  first  ground  of  your  contest  1  deny  the  same,  and  each  and  every  allegation 
therein  contained.  On  the  contrary-,  I  allege  that  my  official  majority,  as  found  by 
the  State  board  of  canvassers  for  the  State  of  South  Carolina,  was  eight  thousand 
four  hundred  and  sixty-eight. 

To  the  second  ground  of  your  contest  I  deny  the  same,  and  each  and  every  allega- 
tion therein  contained. 

To  the  third  and  fourth  grounds  of  yonr  contest  I  object,  and  except  to  them  as  in- 
definite and  insufficient  in  law.  If  true,  as  alleged  by  you,  they  do  not  show  or  allege 
that  I  am  not  entitled  to  said  seat,  or  that  you  are  ;  and  they  do  not  state  how  or 
wherein  the  said  returns  are  not  true  and  correct,  or  what  would  be  your  majority  in 
said  counties  if  the  said  returns  were  corrected  as  claimed  by  you.  In  reference  to 
your  allegation  in  said  third  ground  of  contest,  while  I  do  not  admit  it,  because  I  do 
not  know  it  to  be  true,  but,  on  the  contrary,  req  uire  you  to  prove  it,  I  claim  and  allege, 
if  true,  as  alleged  by  you,  I  would  still  have  a  large  majority  of  the  votes  cast  at  said 
election,  and  be  entitled  to  said  seat.  • 

In  reference  to  the  fourth  ground  of  your  contest,  I  answer  that  I  believe  it  is  true, 
as  alleged  by  you  therein,  that  a  majority  of  the  votes  cast  in  said  counties  of  Sumter, 
Williamsburg,  and  Georgetown  were  cast  for  you,  but  I  object  and  except  to  your 
specification  as  indefinite  and  insufficient  in  law.  It  does  not  state  what  returns  ; 
from  what  voting  precincts ;  how  or  wherein  the  said  returns  are  not  true  or  correct, 
or  what  would  be  your  majorities  in  said  counties  ;  and  I  expressly  and  emphatically 
deny  that  you  would,  if  your  said  allegations  were  true,  thereby  or  by  reason  of  any- 
thing alleged  in  said  third  and  fourth  grounds  of  contest,  have  a  majority  of  the  votes 
cast  in  said  district,  or  be  entitled  to  said  seat. 

To  the  fifth  ground  of  your  contest,  I  answer  that  I  do  not  know  or  admit  that  in 
Sumter  County  the  commissioners  of  elections  illegally  refused  to  count  and  include 
in  their  statement  the  votes  cast  and  returned  at  Sumter  precinct  No.  1,  Carter's 
Crossing,  and  Rafting  Creek.  I  admit  that  the  votes  cast  at  said  voting  precincts 
were  refused  and  excluded.  As  to  the  votes  cast  at  Sumter  precinct  No.  1,  I  waive 
the  question  as  to  whether  the  same  were  legally  or  illegally  refused  and  excluded  by 
said  commissioners,  and  agree  that  the  same  may  be  counted.  And  I  allege  and  claim 
if  they  be  counted,  I  would  still  have  a  large  majority  of  all  the  votes  cast  in  said 
district.    As  to  the  votes  cast  at  Carter's  Crossing  and  Rafting  Creek,  I  deny,  on 


LEE    VS.    RICHARDSON.  525 

iufbrniation  and  belief,  that  they  were  illegally  refused  and  excluded  from  the  said 
statement,  and  I  allege  and  claim,  if  they  be  counted,  I  would  still  have  a  large  ma- 
jority of  all  the  votes  cast  in  said  election. 

To  your  sixth,  seventh,  eighth,  ninth,  and  tenth  grounds  of  contest,  on  information 
and  belief,  I  deny  the  same  and  each  and  every  allegation  therein  contained. 

As  to  so  much  of  the  allegation  contained  in  your  ninth  ground  of  contest  as 
alleges  that  there  is  such  a  voting  precinct  as  Mayesville  in  Sumter  County,  I  deny 
the  same  ;  and  though  I  received  a  majority  of  the  votes  polled  at  said  supposed  pre- 
cinct, I  allege  that  there  is  no  such  voting  precinct  established  by  law,  and  ask  that 
the  vote  returned  and  counted  from  said  supposed  voting  precinct  be  excluded. 

To  your  eleventh  ground  of  contest,  on  iuformation  and  belief,  I  deny  that  the  poll 
at  Stateburg,  in  Sumter  County,  and  at  Crier's,  in  Georgetown  County,  were  not 
opened.  I  deny  that  said  polls  were  not  held  because  the  managers  neglected  or 
refused  to  act.  I  deny  that  because  said  polls  were  not  held  numerous  voters  who 
desired  to  vote  for  you  were  thereby  deprived  of  the  opportunity  to  vote  for  you. 

On  the  contrary,  on  information  and  belief,  I  allege  that  the  poll  at  Crier's,  in 
Georgetown  County,  was  held,  and  I  charge  and  allege  that  your  partisans  and  sup- 
porters, with  force  and  arms,  took  from  the  possession  of  the  managers  of  said  poll 
the  box  containing  the  ballots  cast  for  a  member  to  Congress  and  carried  oft"  the  same, 
refusing  to  allow  the  said  managers  to  count  the  ballots  and  ascertain  the  result. 
And  I  further  allege  that  no  one  was  prevented  from  voting  for  you  who  desired  to 
do  so,  by  anything  that  was  done  at  either  of  said  voting  precincts  by  my  partisans 
and  supporters,  or  by  the  managers  at  said  precincts. 

To  your  twelfth  ground  of  contest,  on  information  and  belief,  I  deny  the  same,  and 
each  and  every  allegation  therein  contained ;  and  I  charge  and  allege,  on  informa- 
tion and  belief,  that  your  partisans  and  supporters,  with  force  and  arms,  took  from 
the  possession  of  the  managers  of  said  Black  |River  or  Brown's  Ferry  precinct  the  box 
containing  the  ballots  oast  at  said  voting  precinct,  and  refused  to  allow  the  same  to 
be  counted  by  the  managers,  as  by  law  required  to  be  done. 

To  your  thirteenth,  fourteenth,  fifteenth,  sixteenth,  seventeenth,  eighteenth,  nine- 
teenth, and  twentieth  grounds  of  contest,  on  information  and  belief,  I  deny  the  same, 
and  each  and  every  allegation  therein  contained.  As  to  your  seventeenth  ground  of 
contest,  and  all  other  grounds  where  similar  allegations  are  made  by  you,  I  charge 
and  allege  that  the  managers  of  the  election  were  appointed,  and  the  purging  of  the 
ballot-boxes,  where  the  same  was  found  to  be  required  by  law,  was  done  in  strict 
accordance  with  the  laws  of  South  Carolina  governing  in  such  ca«e8,  and  that  said 
laws  were  framed  and  passed  by  the  political  party  of  which  you  are  a  member,  and 
the  appointment  of  said  managers  and  the  purging  of  the  boxes  were  done  in  strict 
accordance  with  the  practice  adopted  and  acted  on  by  the  party  of  which  yon  are  a 
member  when  said  party  were  in  power  in  South  Carolina.  I  further  charge  and  al- 
lege that  the  party  to  which  I  belong  have  not  altered,  amended,  or  repealed  the  said 
la\\*s  in  one  iota. 

As  to  so  much  of  your  allegation  contained  in  your  eighteenth  and  nineteenth 
grounds  of  contest  as  alleges  that  there  is  such  a  voting  precinct  as  James  Cross- 
Roads  in  Darlington  County,  I  deny  the  same,  or  that  there  was  any  vote  polled  at 
or  counted  from  any  such  voting  precinct. 

The  undersigned  alleges  and  charges  that  there  is  no  such  voting  precinct  estab- 
lished by  law  as  Mount  Clio,  in  Sumter  County,  and  claims  that  the  vote  counted 
and  canvassed  as  polled  at  said  supposed  voting  precinct  should  be  excluded. 

The  undersigned  further  denies  that  if  the  irxegnlarities  alleged  by  you  to  have 
been  committed  did  occur  (of  which  he  has  no  knowledge  or  information),  they  were 
of  a  character  in  any  degree  to  aft'ect  or  invalidate  his  true  and  lawful  election.  On 
the  contrary  he  alleges  and  claims  that,  counting  the  entire  vote  polled  at  every  vot- 
ing precinct  in  the  Congressional  district,  and  accepting  the  returns  made  by  the 
Republican  supervisors,  wherever  they  made  returns,  as  to  the  number  of  such  votes 
and  the  persons  for  whom  they  were  cast,  the  contestee  received  a  large  majority  of 
all  the  votes  cast  for  a  member  of  Congress  from  the  first  district  of  the  State  of  South 
Carolina  at  the  election  held  for  such  member  on  the  second  day  of  November,  1880. 

While  the  undersigned  denies  that  there  was  any  "  force  or  intimidation  "  what- 
ever used  or  practiced  anywhere  in  the  Congressional  district  by  his  partisans  and 
supporters,  he  alleges  and  charges  that  there  was  great  force,  undue  influence,  vio- 
lence, and  intimidation  practiced  by  you  and  your  partisans  and  supporters  upon  and 
over  a  large  number  of  colored  voters  who  desired  to  vote  for  him,  and  who  in  conse- 
quence of  such  force,  violence,  undue  influence,  and  intimidation  were  prevented  from 
voting  for  him,  and  forced  by  fear  of  violence  and  injury  to  their  persons  or  property 
to  vote  against  their  wishes  for  you.  That  this  was  notably  the  case  at  each  and 
«very  voting  precinct  in  the  counties  of  Stimter,  Williamsburg,  and  Georgetown. 
That  to  render  this  intimidation  more  complete  and  eflfectual  you  and  your  partisans 
and  supporters  caused  large  numbers  of  the  colored  people  to  be  formed  into  clubs, 
and  appointed  captains  over  them,  who  were  charged  to  march  their  squads  in  a  body 


526  DIGEST    OF   ELECTION    CASES. 

to  the  polls,  aud  there  see  that  they  voted  the  Republican  ticket.  That  you  aud 
your  partisans  did  so  ofiScer  them  and  march  them  in  squads  to  the  polls,  aud  bj'  such 
means  massed  large  bodies  of  colored  voters  at  certain  polls,  thereby  crowding  out 
Democratic  voters,  and  preventing  them  from  voting  thereat,  and  thereby  overawed, 
intimidated,  and  forced  many  colored  voters  to  vote  the  Republican  ticket  who  de- 
sired to  vote  the  Democratic  ticket.  That  you  and  your  partisans  and  supporters 
procured  certain  little  blank  books,  which  you  and  your  partisans  and  supporters 
caused  to  be  placed  in  the  hands  of  certain  of  your  partisans  and  supporters,  and 
gave  out  that  these  books  were  furnished  by  the  United  States  authorities,  or  by  the 
National  Republican  party  who  were  in  authority  for  the  purpose  of  entering  therein 
the  names  of  all  colored  men  who  voted  the  Republican  ticket,  to  be  returned  to  the 
said  authorities  as  evidence  that  they  had  so  voted. 

The  undersigned  further  alleges  and  charges  that  you  intimidated  a  large  number 
of  colored  voters  and  prevented  them  from  voting  for  contestee  by  procuring  yourself 
to  be  appointed  a  United  States  deputy  marshal,  and  acting  as  such  in  the  interest  of 
your  own  election.  That  you  and  your  partisans  and  supporters  procured  the  ap- 
pointment of  a  large  number  of  special  deputy  marshals,  whom  you  and  your  parti- 
sans and  supporters  caused  to  be  stationed  at  each  and  every  poll  in  the  Congres- 
sional district  without  warrant  of  law,  there  being  no  city  or  town  in  the  district  of 
twenty  thousand  inhabitants.  That  these  deputy  United  States  marshals  had  dis- 
played on  their  persons  the  badges  of  their  authority  obtained  from  the  United  States 
authorities,  and  were  active  partisans  and  supporters  of  yourself,  overawing  and  for- 
cing many  colored  voters  to  vote  for  you  who  would  otherwise  have  voted  for  him. 

The  undersigned  further  alleges  and  charges  that  in  order  the  more  effectually  to 
intimidate  and  force  the  colored  voters  to  vote  for  you,  yon  caused  your  name  as  a 
candidate  for  member  of  Congress  to  be  printed  on  a  thick,  stiff,  and  striped-back 
card,  easily  discerned  at  a  considerable  distance,  thereby  seeking  to  prevent,  and  in 
a  great  many  instances  did  prevent,  the  colored  voters  from  voting  a  secret  ballot,  as 
is  contemplated  by  the  law.  That  many  of  these  colored  voters  desired  to  vote  the 
Democratic  ticket  on  which  coutestee's  name  was  printed  as  a  candidate,  and  would 
have  done  so  could  they  have  voted  it  without  its  being  known  to  your  partisans  and 
supporters  for  whom  they  voted.  That  many  colored  voters  actually  came  to  the 
friends  and  supporters  of  the  undersigned  and  stated  that  they  intended  and  desired 
to  vote  the  Democratic  ticket,  but  could  not  do  so,  for  fear  of  your  partisans  and  sup- 
porters, unless  the  Democratic  ticket  could  be  pasted  on  the  inside  of  your  striped- 
back  ticket,  and  these — when  this  device  was  resorted  to  to  shield  and  protect  them 
against  the  violence  and  intimidation  of  your  partisans — voted  the  Democratic  ticket. 

The  undersigned  alleges  and  charges  that  your  partisans  and  supporters  armed 
themselves  with  guns  and  pistols,  openly  displayed  on  their  persons,  and  went  to  the 
polls  so  armed  and  equipped,  and  there  threatened  and  intimidated  many  colored 
voters  who  intended  and  desired  to  vote  the  Democratic  ticket,  and  prevented  them 
from  so  doing  ;  that  this  was  so  done  at  each  and  every  voting  precinct  in  the  coun- 
ties of  Georgetown  and  Williamsburg,  and  at  Sumter  Court-House,  Carter's  Cross- 
ing, and  Rafting  Creek,  in  Sumter  County. 

The  issues  between  the  parties  are  so  clearly  set  out  in  their  plead- 
ings that  little  comment  thereon  is  needed. 

"We  therefore  proceed  to  examine  the  case  according  to  the  testimony 
found  in  the  record,  aud  the  law  applicable  thereto, 

GEORGETOWN   COUNTY. 

It  is  agreed  (Eichardson's  brief,  Record,  p.  92)  by  both  contestant 
and  contestee  that  all  the  vote  of  Georgetown  County  was  rejected  by 
both  the  county  and  State  board  of  canvassers  save  one  poll,  to  wit, 
Georgetown  poll — that  is,  viz,  Santee,  Sampit,  Upper  Waccamaw,  Lower 
Waccamaw,  Carver's  Bay,  Choppee,  Pedee,  and  Brown's  Ferry,  eight 
precincts  thrown  out  and  Grier's  not  held. 

The  "  official  returns"  give  to  Lee  617  votes ;  to  Richardson  302  votes 
for  the  ichole  county ;  total,  919  votes.  Thus  giving  to  Mr.  Lee  a  ma- 
jority of  315  only. 

But  Mr.  Richardson  admits  (brief,  p.  10)  that  the  total  vote  iu  1876 
in  the  same  county  was  3,836,  almost  four  times  as  much  as  in  1880,  and 
this  is  explained  because  of  the  throwing  out  of  the  eight  precincts. 
Were  these  eight  precincts,  or  any  of  them,  improperly  thrown  out  ? 


LEE    VS.    RICHARDSON.  527 

But,  first,  as  to  Georgetown  poll.  It  appears  from  the  Record,  page 
788  (B.  H.  Williams),  and  is  not  contradicted,  that  at  Georgetown  poll 
923  votes  were  cast ;  1,092  were  found  in  the  box,  1C9  more  than  there 
were  voters  (H.  T.  Herriott,  Record,  p.  817),  and  these  were  Democratic 
tissue  ballots,  and  all  for  Richardson.  Instead  of  rejecting  these  1G9 
tissue  ballots  the  managers,  all  Democrats,  returned  all  the  tickets  to  the 
box  and  then  withdrew  169  tickets  and  destroyed  them  (Record,  798), 
but  not  one  tissue  ballot  is  shown  to  have  been  withdrawn.  Other  hon- 
est ballots,  which  were  honestly  cast,  were  withdrawn  and  destroyed. 
All  the  tissue  ballots  were  counted  for  Richardson ;  112  honest  Lee  bal- 
lots and  57  honest  Richardson  ballots  were  withdrawn  and  destroyed. 

Thus  Richardson  got  169  more  votes  than  he  was  entitled  to  and  57 
less ;  but  his  vote  was  increased  112  by  the  fraud  and  Lee's  decreased 
112  by  the  same  fraud,  and  it  was  so  counted  in  the  make  up  of  Rich- 
ardson's assumed  majority.  Thus,  as  Richardson  got  by  this  fraud  112 
more  than  he  was  entitled  to  and  Lee  112  less,  the  difference  is  224. 
And  manifestly  if  there  was  no  other  fraud  Richardson's  majority  is  too 
great  by  224  votes,  and  Lee's  true  majority  at  Georgetown  poll  was  539 
in  place  of  only  315. 

Santee  Poll. 

At  Santee  an  honest  election  was  held ;  501  persons  voted  as  shown 
by  the  poll-list,  and  501  ballots  were  found  in  the  box.  (J.  B.  Lloyd, 
Record,  804.)  Two  votes  were  only  for  Presidential  electors ;  449  votes 
were  cast  for  Representatives  in  Congress,  and  of  these  Lee  received 
476  and  Richardson  23,  showing  a  clear  majority  for  Lee  of  453.  But 
this  poll  was  rejected,  not  because  there  was  any  fraud  or  any  pre- 
tended fraud,  but  as  J.  W.  Tarbox,  the  Democrat  chairman  of  the 
county  board  of  commissioners  swears  (Record,  p.  797),  "  We  threw  out 
the  Santee  box  because  the  box  was  sent  without  a  written  certifi- 
cate authorizing  the  bearer  to  deliver  it."  But  that  the  election  was 
an  honest  one,  and  that  Lee  received  453  majority,  i  s  uncontradicted 
and  unquestioned. 

Sampit. 

This  precinct  was  rejected  by  the  same  board  of  commissioners  for 
the  same  reason,  because  "  the  box  was  sent  without  a  written  certifi- 
cate authorizing  the  bearer  to  deliver  it." 

At  this  precinct  437  ballots,  as  is  shown  by  the  poll-list,  of  which 
432  were  for  Congress.  (H.  T.  Johnson,  Record,  p.  815.)  The  poll-lists 
kept  by  the  two  supervisors  agreed ;  495  ballots  were  found  in  the  box 
when  it  was  opened. 

Xow,  somebody  committed  a  fraud  by  placing  58  fraudulent  ballots 
in  that  box.  Two  of  the  managers  were  Democrats  and  one  a  Repub- 
lican. Twenty  "  little  jokers,"  tissue  ballots,  were  found  inclosed  in 
another  ballot.  The  managers  destroyed  the  20  tissue  ballots  and  re- 
turned to  the  box  tlie  ballot  inclosing  them. 

Four  Democratic  ballots  were  found  with  one  or  more  Democratic 
ballots  folded  within  them.  These  inclosed  ballots  were  destroyed,  and 
then  an  excess  of  37  ballots  was  still  found.  Then  the  managers  drew 
from  the  box,  in  strict  accord  with  the  law  of  South  Carolina,  37  bal- 
lots ;  18  were  Republican  and  19  were  Democratic.  The  withdrawal 
was  as  fair  as  could  possibly  be.  But  the  fraud  practiced,  it  is  as  clear 
as  sunlight,  was  a  Democratic  fraud ;  yet  this  ballot-box  was  rejected, 
not  because  of  the  fraud,  but  on  a  purely  technical  ground.  Mr.  Lee, 
as  both  the  Republican  and  Democratic  supervisors,  who  were  present, 


528  DIGEST  OF  ELECTION  CASES. 

saw  and  reported  the  result,  swear  (Record,  p.  816),  got  256  votes 
and  Mr.  Richardson  176,  a  clear  majority  for  Mr.  Lee  of  80  votes,  as 
shown  b}^  the  managers'  returns.  But  Richardson  got  18  more  votes 
than  he  was  entitled  to  and  Lee  18  less,  because  18  "  tissue  ballots  " 
were  counted  for  Richardson  in  place  of  18  honest  votes  for  Lee  with- 
drawn from  the  box,  and  then  36  votes  should  be  added  to  Lee's  vote, 
and  his  majority  is  honestly  116  at  this  precinct. 

Upper  Waccamaw. 

This  precinct  was  rejected  by  the  Democratic  county  commissioners 
for  the  same  reasons — purely  technical.  The  managers  who  held  the 
election  were  all  Democrats  (Record,  p.  810).  They  were  Mr.  Rich- 
ardson's political  friends,  and  ought  to  have  seen  that  no  fraud  was 
perpetrated,  as  against  him  at  least.  But  Bently  Weston  and  R.  F. 
Johnson,  the  two  sux^ervisors,  one  a  Democrat  and  one  a  Republican, 
reported  (Record,  p.  814),  and  Johnson  sicears,  that  there  were  432 
names  on  the  poll  list ;  that  an  excess  of  50  ballots  were  found  in  the 
box.  This  excess  was  drawn  out  and  destroyed  by  a  Democratic  man- 
ager, but  by  a  singular  perversity  of  fate  48  of  the  ballots  were  Repub- 
lican and  only  tico  Democratic  !  And,  as  a  specimen,  let  the  following 
testimony  of  R.  F.  Johnson  show  : 

Question.  How  many,  if  any,  Democratic  ballots  were  found  together  in  one  at  the 
counting  of  the  ballots  at  the  close  of  the  poll  ? — Answer.  Twelve  in  one. 

After  this  manipulation  the  Democratic  managers  gave  to  Mr.  Lee 
341  votes  and  to  Mr.  Richardson  90,  which  gave  Mr.  Lee  251  majority, 
and  this  was  rejected  by  the  Democratic  county  commissioners  and 
utterly  cast  away. 

Reversing  this  process  of  gross  and  palpable  fraud,  even  the  Demo- 
cratic managers,  whose  business  it  was  to  see  justice  done,  admitted  and 
certified  to  a  majority  for  Mr.  Lee  of  251,  and  remembering  that  48  honest 
votes  given  to  Mr.  Lee  were  drawn  out  and  48  votes  not  honestly  given 
to  Mr.  Richardson  were  left  in  the  box,  thus  taking  from  Lee  48  votes 
which  belonged  to  him  and  adding  to  Mr.  Richardson's  vote  48  votes 
which  did  not  belong  to  him,  Mr.  Lee's  vote  is  swelled  to  341  plus  48, 
which  makes  389,  and  Mr.  Richardson's  is  90  less  48,  which  gives  him 
42  votes ;  and  this  clearly  gives  Mr.  Lee  at  this  poll  a  majority  of  347 
votes,  instead  of  251. 

Loicer  Waccamaw. 

The  poll  at  this  precinct  was  rejected  for  the  same  flimsy  reason. 
There  is  no  dispute  between  the  parties  as  to  the  vote  actually  cast. 
Two  of  the  managers  were  Democrats  and  one  Republican  (Record,  page 
824).  An  honest  election  was  had  here  ;  the  vote  was  250  for  Lee  and 
45  for  Richardson.  This  fact  is  utterly  unquestioned.  This  gave  Lee 
205  majority.    Let  us  in  conscience  so  count  it. 

Carver''8  Bay. 

The  managers  here  were  all  Democrats  (Record,  820).  The  i)oll-list, 
kept  by  these  Democratic  managers  and  by  the  Republican  supervisor, 
both  agree  that  only  283  votes  were  cast ;  377  votes  were  found  in  the 
box  when  the  same  was  opened.  (Record,  p.  820,  R.  B.  Anderson.) 
The  box  was  in  the  hands  and  under  the  control  of  the  Democratic 
managers.  A  fraud  gross  and  palpable  was  perpetrated — 94  fraudulent 
votes  were  found  in  the  box.  In  one  ballot  twenty-three  Democratic 
ballots  were  found  inclosed,  and  also  "tissue  ballots"  were  found  pro- 
fessing to  be  Republican  ballots,  by  having  the  honored  names  of  Gar- 


LEE    YS     RICHARDSON.  529 

field  .and  Arthur  at  the  top ;  aud  then  a  lot  of  names  of  persons  as  electors 
who  were  not  running ;  and  then  the  name  of  Mr.  Richardson  as  the 
Republican  (?)  candidate  for  Congress.  Within  one  ballot  alone  31  of 
these  doubly  fraudulent  ballots  were  found.  These  23  Democratic  and 
31 '' so-called"  Republican  tissue  ballots,  but  all  having  the  name  of 
Mr.  Richardson  as  a  candidate,  and  the  one  which  inclosed  the  23,  were 
destroyed ;  thus  55  fraudulent  votes  out  of  94  fraudulent  votes  were 
destroyed  by  the  managers.  But  39  fraudulent  votes  icere  returned  to 
the  box  ;  of  this  number  was  drawn  out  19  Republican  and  20  Demo- 
cratic. The  drawing  out  was  as  fair  as  fair  could  be.  And  the  man- 
agers returned  183  for  Richardson  and  97  for  Lee.  (R.  B.  Anderson, 
Record,  pp.  820-'21.)  This  gave  Richardson  86  majority.  But  the  facts 
show  the  fraud  was  a  Democratic  fraud.  The  fraud  was  in  favor  of 
Mr.  Richardson.  Nineteen  Republican  votes  were  drawn  out  which  were 
honestly  cast.  In  their  place  19  fraudulent  votes  were  left  in  the  box 
aud  counted  for  Mr.  Richardson.  He  got  19  more  votes  than  he  was 
entitled  to,  and  Lee  19  less.  The  difference  is  38.  Subtract  this  from 
Richardson's  certified  majority  of  86  ;  lessen  it  by  38,  and  his  true  ma- 
jority was  only  48. 

And  this  would  give  a  difference  of  38  votes  in  favor  of  Lee  over  that 
certified  to  by  the  managers. 

Choppee. 

This  poll  was  thrown  out  for  the  same  alleged  reason  above  set 
forth  as  in  the  case  of  Sampit.  (Record,  p.  797.)  The  undisputed  vote 
cast  was  238.  That  number  of  ballots  were  found  in  the  box.  The 
managers  were  all  Democrats,  but  they  show  in  this  retiu'u  that  the 
honest  vote  cast  was  197  for  Lee,  and  for  Mr.  Richardson  41.  This 
gives  a  majority  for  Lee  of  156.  (E.  J.  Greggs,  Record,  p.  823.)  This 
result  is  undisputed  ;  it  should  be  so  counted. 

Peedee. 

Here  the  managers  were  all  Democrats.  Their  returns  and  the  United 
States  supervisors  testify  to  the  same  result.  The  vote  stood  469  for 
Lee  and  33  for  Richardson,  giving  a  majority  for  Lee  of  436.  This  is  not 
questioned  or  disputed.  It  was  thrown  out  by  the  county  commissioners 
for  the  same  technical  reason  as  Choppee  and  the  balance.  (Record, 
p.  797.)  We  cannot  so  report;  because  the  messenger  was  not  au- 
thorized to  carry  up  the  returns  in  writing  we  cannot  reject  the  entire 
poll! 

Broioi's  Ferry  or  Black  River  Precinct. 

At  this  precinct  it  appears  to  be  admitted  that  a  reasonably  fair  elec- 
tion was  held.  That  is,  every  voter  was  permitted  to  vote  as  he  chose. 
The  poll-list  of  the  managers  showed  (Record,  p.  800)  that  296  votes 
were  cast,  and  the  names  of  the  voters  are  given.  But  when  the  box 
was  opened  602  ballots  were  found  in  that  box.  All  the  managers  were 
Democrats.  (See  Record,  p.  790-'2.)  To  show  how  these  ballots  were 
found  in  the  box,  the  testimony  of  Joseph  Dunmore,  a  United  States 
supervisor,  is  sufficient.     We  quote  (Record,  p.  794): 

Q.  Where  in  the  box,  in  what  quaatities,  ami  in  what  conditiou  were  these  tickets 
found?— A.  About  the  middle  of  the  box,  iuside  of  a  larger  Democratic  ticket,  in 
quantities  of  10  or  12. 

Q.  How  many  of  these  packages  were  found  together  in  the  box? — A.  Five  or  six. 

H.  Mis.  35 34 


530 


DIGEST  OF  ELECTION  CASES. 


He  also  swears  that  "at  the  corner  bottom  of  the  box  a  large  number 
of  these  tickets  were  found."  }  t  appears  that  the  voters  were  very  much 
excited,  as  we  think  American  citizens  ought  to  have  been — 

When  they  found  that  the  managers  attempted  to  throw  the  ballots  found  folded 
together  back  into  the  box  and  count  them.     (Record,  p.  790.) 

The  witness  Dunmore  being  asked  why  he  objected  to  counting  these 
five  or  six  parcels  of  fraudulent  tickets,  answered,  "  Because  they  refused 
to  destroy  all  but  one  (as  the  law  required),  but  attempted  to  put  them 
back  in  the  box  and  count  them."  Isaiah  James  McCottru  (Record,  p. 
810)  swears  that  201  Republican  votes  were  cast  and  95  Democratic.  In 
this  he  is  corroborated  by  Joseijh  Dunmore,  the  United  States  super- 
visor. A  great  excitement  naturally  prevailed.  A  monstrous  fraud 
was  about  to  be  perpetrated  before  their  eyes.  Joseph  Dunmore  swears, 
page  792,  that  Mr.  Montgomery,  one  of  the  managers,  suggested  "to 
throw  the  whole  box  in  the  fire."  In  this  he  showed  his  thorough  im- 
partiality (?),  the  Republicans  being  largely  in  the  majority.  The  Dem- 
ocratic United  States  supervisor  said,  "No;  throw  them  in  Black  River, 
as  it  was  a  fraud,  and  he  would  not  stand  and  see  them  counted." 
All  the  tickets  were  placed  back  in  the  box,  tissue  ballots  and  all,  and 
the  box  locked  and  delivered  to  Joseph  Dunmore  (Record,  792),  who 
next  day  offered  the  box  and  the  contents  to  J.  W.  Tarbox,  the  chairman 
of  the  county  commissioners  of  election,  who  would  not  receive  it.  The 
said  box  was  by  Dunmore  transmitted  to  the  Committee  on  Elections, 
and  is  now  in  the  custody  of  the  clerk  of  said  committee.  But  as  the 
names  on  the  poll-list  are  printed  in  the  Record,  page  800,  and  the  num- 
ber not  disputed,  and  as  the  proof  is  clear  that  95  were  Democratic  votes 
and  201  Republican,  and  as  "nothing  short  of  the  impossibility  of  ascer- 
taining for  whom  the  majority  of  the  votes  were  given  ought  to  vacate 
an  election  "  (McCrary  on  Elections,  230),  we  are  constrained  to  count  95 
votes  for  Richardson  and  201  for  Lee,  since  the  witness  McCottru 
swears  he  observed  the  Republican  ticket  voted  (page  810)  bore  the 
name  of  Samuel  Lee  for  Congress,  and  this  would  give  Mr.  Lee  106  ma- 
jority at  this  poll. 

The  result  of  this  analysis  shows  that  in  Georgetown  County,  by  the 
record  evidence,  enormous  frauds  were  perpetrated ;  that  looking  to  the 
uncontradicted  evidence  as  to  the  votes  actually  cast  by  the  legal  voters, 
the  vote  honestly  cast  was  as  follows: 

Vote  of  Georgetoton  County. 


Precincts. 

As  returned  to  the  State 
canvassers. 

As  corrected  by  the  com 
mittee. 

Bichardson. 

Lee. 

Kichardson. 

Lee. 

Santee 

23 
158 
42 
45 
164 
41 
33 

476 

Sampit 

274 

389 

•250 

Carver's  Bay 

118 

Choppee ..•..  .......  .... 

197 

Pee  Dee 

46» 

Grier's,  no  poll  opened 

Brown's  Ferry,  or  Black  Kiver ... ..'-  

95 
190 

201 

Court-house  precinct 

302 

617 

729 

791   !                 3,101 

Lee's  majority 

2,310 

1 

LEE    VS.    RICHARDSON,  531 

This  gives  a  gross  majority  iu  Georgetowu  County  to  Lee  of  2,310,  in 
place  of  315,  as  allowed  by  the  board  of  State  canvassers,  and  deduct- 
ing the  admitted  majority  from  the  real  majority  of  Mr,  Lee,  shows  be- 
yond cavil  that  Mr.  Lee  was  defrauded  out  of  1,995  honest  votes  la 
Georgetown  County. 

SUMTER  COUNTY. 

The  board  of  State  canvassers  certify  that  Mr.  Lee  received  in  this 
county  1,789  votes,  and  Mr,  Richardson  2,560  votes  (see  Record,  p. 
228).     We  analyze  the  vote  of  this  county  as  follows : 

Sumter  Precinct  No.  1.  * 

Mr.  Richardson,  the  contestee,  in  his  answer  to  the  notice  of  contest, 
on  page  4  of  the  Record,  uses  the  following  language : 

As  to  votes  cast  at  Sumter  precinct  No.  1,  I  waive  the  question  as  to  whether  the 
same  ■were  legally  or  illegally  refused  and  excluded  by  the  commissioners,  and  agree 
that  the  same  may  be  counted. 

The  proof  shows  that  1,499  votes  were  cast  for  Samuel  Lee,  and  9- 
votes  for  John  S.  Richardson.  (Record,  pp.  44  and  245.)  Since  Mr. 
Richardson  admits  this  vote  to  be  correct,  we  may  safely  count  it  that 
wav.  This  gives  Mr.  Lee  a  clear  majority  at  Sumter  precinct  'So.  1  of 
1,490  votes. 

The  honesty  of  the  contestee  with  regard  to  this  precinct  is  certainly 
worthy  of  commendation  ;  but  what  shall  be  said  of,  or  what  language 
can  characterize,  the  partisan  malignity  of  the  commissioners  who  ut^ 
terly  ignored  that  poll  ? 

Sumter  Precinct  No.  2. 

At  this  poll,  which  was  in  the  same  town  as  Sumter  precinct  Ifo.  1^ 
and  about  100  yards  distant,  the  total  vote  cast  for  Richardson  was  398 ; 
the  vote  cast  for  Lee  was  91,  making  a  total  of  489  votes. 

It  appears  clearly  by  the  evidence  that  a  great  many  voters  tried  to 
vote  there  who  could  not  and  did  not.  (See  Record,  pp.  29,  31, 38^ 
41,  256,  258,  259,  52,  53,  and  54.)  It  must  be  apparent  to  the  dullest 
capacity  that  if  1,508  honest  votes,  as  Mr.  Richardson  admits,  could  be 
cast  at  Sumter  Xo.  1  on  the  day  of  the  election,  the  same  number  of 
votes  might  have  been  cast  within  the  same  hours  at  Sumter  No.  2. 
The  record  shows  that  at  Statesburg  precinct,  a  neighboring  voting 
place,  no  election  was  held.  The  managers  at  Statesburg  were  all  Dem- 
ocrats ;  necessarily  the  voters  of  that  precinct  had  to  go  to  a  neighbor- 
ing precinct  or  not  vote  at  aU.  They  went  to  Sumter,  and  A.  John- 
son Andrews  swears  (see  p.  42),  "  I  saw  about  400  to  500  Republicans 
leave  town  that  day  without  voting."  Other  witnesses  prove  that  Re- 
publican voters  were  iirevented  from  going  to  that  ballot-box.  Men  and 
boys  stood  in  solid  array  iu  front  of  that  ballot-box.  Democrats  had 
free  access  to  the  poll.  One  witness,  B.  Spears  (see  p.  30),  swears  as 
follows:  ''Every  time  I  started  I  was  pushed  right  back,  but  that  col- 
ored men  who  had  Democratic  votes  in  their  hands  were  given  free 
passage." 

Thomas  R.  Harney  (Record,  p.  32)  swears  that  it  was  impossible  for 
a  colored  Republican  to  vote  at  Sumter  Xo.  2 — 

Because  the  stairway  leading  to  the  poll  was  crowded  with  white  men  and  boys. 


532  DIGEST    OF    ELECTION    CASES. 

and  when  I  attempted  to  go  up  I  would  be  squeezed  and  loasbed  so  that  I  would  be 
injured  by  trying  to  get  up  there.  I  made  three  attempts  to  get  up  there,  but  failed 
«ach  time. 

C.  J.  Croghan  swears  (see  p.  39) : 

Occasionally  they  let  one  in  after  sticking  him  with  pins,  abusing  him,  and  cursing 
liim,  and  telling  him  this  was  no  damned  Republican  poll. 

Alfred  Davis  (Record,  p.  52)  swears  he  attempted  to  vote.  '*  I  was 
prevented  as  I  started  up  the  steps ;  I  was  struck  with  knives  every- 
where." To  the  same  effect  is  the  testimony  of  Aucrum  Slater,  Ransom 
Dicks,  Monday  Bronson,  and  others  (see  pp.  46  to  54).  From  all  this 
testimony  it  must  be  clear  that  no  fair  election  was  lield  at  Sumter  No. 
2.  The  frauds  which  were  committed  were  in  favor  of  Mr.  Richardson. 
Allowing  them  to  stand,  we  pass  to 

Lynchburg  Precinct. 

The  State  board  of  canvassers  report  that  Mr.  Lee  received  181  votes 
and  Mr.  Richardson  319  votes,  making  a  total  of  500  votes.  (See  Record, 
p.  227.)  But  107  more  ballots  were  found  in  the  box  than  were  act- 
ually cast  by  the  voters.  (See  Record,  pp.  25  and  27 — James  Levy  and 
R.  A.  Wilson.)  All  the  managers  were  Democrats.  By  the  law  of 
South  Carolina,  107  ballots  were  drawn  from  the  box  and  destroyed, 
and  then  the  500  ballots  remaining  were  counted.  This  would  have 
been  exactly  just  if  the  107  fraudulent  ballots  had  been  withdrawn,  but 
they  were  not.  The  result,  as  stated  by  the  board  of  State  canvassers, 
was,  as  we  have  already  seen,  181  for  Mr.  Lee  and  319  for  Mr.  Richard- 
son. But  since  it  is  evident  that  a  gToss  fraud  was  perpetrated  here,  as 
in  other  precincts,  by  the  ballot-box  being  stuffed,  and  since  all  the 
managers  whose  duty  it  was  to  see  that  the  box  was  empty  at  the  out- 
set, and  to  see  that  a  fair  election  was  held,  were  the  political  friends 
of  Mr.  Richardson,  it  is  difficult,  not  to  say  impossible,  to  believe  that 
the  fraud  was  perpetrated  in  favor  of  Mr.  Lee. 

We  turn,  therefore,  to  the  positive  testimony,  and  on  page  61  of  the 
Record  a  list  is  found  of  those  who  exhibited  Republican  ballots,  and 
who  voted  the  same. 

This  list  shows  that  242  votes  were  cast  for  Mr.  Lee  at  Lynchburg 
precinct,  and  since  the  report  of  the  board  of  State  canvassers  shows 
that  500  votes  were  cast  for  candidates  for  Congress,  the  true  vote  as 
actually  cast  was  for  Lee  242  and  for  Richardson  258,  in  place  of  for 
Lee  181  and  for  Richardson  319. 

By  the  ofBcial  returns  Richardson  received  138  majority ;  but  in  truth 
and  in  fact  he  received  a  majority  of  16  votes  only.  (See  testimony  of 
James  Levy,  Record,  pp.  25  and  61 ;  also  R.  A.  Wilson,  p.  27.) 

Now,  it  is  clear  that  the  107  extra  ballots  found  in  the  box  were  fraud- 
nlent.  They  must  have  been,  for  there  were  no  voters  behind  them. 
Were  they  for  Mr.  Lee  ?    The  record  is  silent  as  to  who  they  were  for. 

R.  A.  Wilson,  United  States  supervisor,  page  28,  swears  the  mana- 
gers would  not  let  him  see  the  tickets  they  destroyed.  In  this  he  is 
corroborated  by  J.  A.  Rhame.     (Record,  671.) 

Maysville  Precinct. 

At  this  precinct  the  State  board  of  canvassers  give  to  Mr.  Lee  257 
votes  and  to  Mr.  Richardson  274  votes.  The  total  vote  would  thus  be 
531. 

But  the  poll-list  showed  that  539  votes  were  cast,  and  there  was  found 


LEE    VS.    RICHARDSON.  533^ 

iu  the  box  700  ballots.  It  is  thus  manifest  that  there  was  a  fraud  per- 
petrated by  stuffing  the  ballot-box  with  221  fraudulent  ballots.  They 
were  Democratic  hallots.  Y.  S.  Johnson  swears  (Kecord,  p.  19),  that 
in  not  less  than  ten  instances  "  there  were  quite  a  number  of  Demo- 
cratic tickets  folded  together,"  and  "  the  general  appearance  was  that 
they  were  laid  in  there  before  the  voting  commenced,  and  had  not  been 
put  through  the  hole  in  the  lid  "  ;  and  also  swears  that  Mr.  Wilson,  one 
of  the  managers  and  the  one  who  counted  the  tickets,  stated  that "  the 
tickets  were  hatching  in  the  box."  Johnson  also  swears  that  he  saw 
the  tickets  counted,  and  no  Democratic  tickets  were  pasted  upon  the 
checked-backed  tickets  voted  by  the  Republicans,  and  all  the  managers 
were  Democrats  ;  and  Mr.  Cooper,  one  of  the  Democratic  managers,  de- 
clared that  the  bundle  of  Democratic  tickets  ''  could  not  have  been  voted 
iu  the  box  and  have  to  be  torn  up."  Mr.  Johnson  further  swears  that 
"  there  was  one  bundle  which  could  not  go  through  tlie  hole  in  the  lid." 
H.  H.  Wilson  swears  (p.  21)  that  he  kept  a  book,  which  he  produced, 
in  which  the  names  of  the  voters  who  voted  the  Eepublicau  ticket  at 
that  poll  on  that  day  were  written  down,  and  that  402  Republican  votes 
were  cast,  upon  which  appeared  the  name  of  Samuel  Lee  for  Congress. 
The  names  of  all  these  voters  are  found  in  the  Record  on  page  58  and 
following,  as  sworn  to  by  the  witness  Wilson.  Wilson  swears  he  saw 
each  of  these  persons  deposit  their  tickets.  (See  Record,  p.  22.)  True 
it  is  that  E.  M.  Cooper,  one  of  the  Democratic  managers,  swears^ 
on  page  698,  that  in  his  judgment  Wilson  could  not  know  this  fact,  but 
it  is  evident  that  221  fraudulent  ballots  were  found  in  the  box.  They 
could  not  have  been  put  through  the  small  hole  in  the  lid  of  the  box. 
The}'  must  have  been  placed  in  the  box  before  the  poll  was  opened. 
They  were  all  Democratic  tickets.  It  is  impossible  to  believe  for  an  in- 
stant that  it  was  a  Republican  fraud,  since  the  whole  advantage  was  in 
favor  of  Mr.  Richardson  and  the  Democratic  party.  It  is  clear  as  dem- 
onstration can  be  that  it  was  a  Democratic  fraud.  Tinder  the  law  of 
South  Carolina  a  number  of  ballots  equal  to  the  fraudulent  Democratic 
excess  was  withdrawn  from  the  box.  It  would  have  been  honest  if  all 
of  the  fraudulent  Democratic  votes  had  been  withdrawn,  but  the  record 
shows  they  were  not.  Instead  of  this,  147  honest  Republican  votes 
and  74  dishonest  Democratic  votes  were  withdrawn.  Since  147  honest 
Republican  votes  were  withdrawn  and  destroyed,  and  147  dishonest  and 
fraudulent  Democratic  votes  were  left  in  the  box  and  were  dishonestly 
counted  for  Mr.  Richardson,  the  fraud  consisted  in  giving  to  Mr.  Rich- 
ardson 147  more  votes  than  were  actually  cast  for  him  and  taking  away 
147  votes  which  were  honestly  cast  for  Mr.  Lee. 

We  must  correct  the  result  as  declared  by  the  board  of  State  can- 
vassers by  deducting  from  Mr.  Richardson's  certified  vote  147  votes, 
and  by  adding  to  Mr.  Lee's  certified  vote  147  votes.  This  will  deduct 
294  votes  from  Mr.  Richardson's  certified  majority,  and  shows  that  the 
true  vote  at  the  Maysville  precinct  was  404  votes  for  Lee  and  127  for 
Richardson,  in  place  of  257  for  Lee  and  274  for  Richardson.  This  shows 
that  Mr.  Lee's  true  majority  at  Maysville  precinct  was  277  in  place  of  a 
majority  of  17  votes  for  Richardson,  as  certified  by  the  board  of  State 
canvassers. 

Concord  Precinct. 

At  this  precinct  it  is  claimed  by  Mr.  Richardson,  and  conceded  by 
Mr.  Lee,  that  evey  honest  vote  cast  was  cast  for  Mr.  Richardson.  One 
hundred  and  fifty-two  honest  Democratic  votes  were  cast  at  this  poll. 


534  DIGEST    OF    ELECTION    CASES. 

The  Eepublicans  refused  to  vote,  because  tliey  believed  the  ballot-box 
was  alreadj^  stuffed  before  the  poll  was  opened.  All  who  voted  there 
voted  the  Democratic  ticket.  This  is  uudeuiable.  (See  Record,  p.  54.) 
But,  strange  to  say,  when  the  box  was  opened  a  fraudulent  excess 
of  4:1  ballots  was  found  in  the  box.  They  were  all  Democratic  tickets. 
As  no  Eepublicans  voted,  and  not  a  single  Republican  ballot  was  found 
in  the  box,  it  would  seem  to  be  plain  that  this  fraud  was  a  Democratic 
fraud.  The  excess  was  properly  rejected,  but  Concord  precinct  may 
fairly  be  held  forth  as  a  specimen  of  the  frauds  perpetrated  in  this  dis- 
trict. The  managers  were  all  Democrats.  Democrats  alone  voted. 
One  of  the  managers,  J.  D.  Wilder,  testifies  (Record,  p.  C92)  that : 

The  Republicans  refused  to  vote,  and  that  au  excess  of  41  hallots  were  found  in  the 
box  when  the  same  was  opened. 

He  further  swears  that  he — 

Did  not  see  a  single  person  who  was  recognized  as  a  Republican  voter  at  that  poll. 

The  only  explanation  of  the  singular  facts  which  stand  out  clear  and 
apparent  at  Concord  precinct  poll  is  that  a  scheme  had  been  formed  and 
organized  before  the  election  came  off  to  deliberately  swindle  Mr.  Lee 
and  the  Republican  party  in  the  election  in  that  district  at  that  time. 
It  is  the  only  explanation  a  reasonable  mind  can  offer  or  suggest  why 
«uch  a  monstrous  and  patent  fraud  was  perpetrated.  And  here  we 
leave  the  consideration  of  the  Concord  precinct,  with  the  consciousness 
of  having  exposed  a  fraud  as  novel  as  it  is  monstrous. 

Privateer  Precinct. 

At  this  precinct  a  comparatively  fair  election  was  held.  The  man- 
agers were  all  Democrats  (Record,  p.  45).  Seventeen  Republicans  only 
voted  there,  and  127  Democrats.  But  when  the  box  was  opened  there 
was  an  excess  of  120  ballots.  That  they  were  fraudulent  no  man  can 
deny,  since  there  were  no  voters  to  cast  them.  Under  the  law  of  South 
Carolina  these  120  votes  in  excess  had  to  be  withdrawn  from  the  ballot- 
box.  They  were  Democratic  votes.  In  withdrawing  120  votes,  10  of 
the  honest  17  Republican  votes  that  had  been  cast  were  withdrawn, 
and  only  110  of  the  120  dishonest,  corrupt,  and  fraudulent  Democratic 
votes  were  withdrawn.  Believing  that  honest  votes  only  ought  to  be 
counted,  we  must  diminish  the  vote  of  Mr.  Richardson  by  10  votes, 
which  are  counted  for  him  in  his  certified  majority,  but  which  were  not 
cast  for  him  by  voters,  and  increase  Mr.  Lee's  certified  vote  of  7  to  the 
17  votes  actually  cast  for  him,  and  this  makes  a  difference  of  20  votes 
which  must  be  deducted  in  truth  and  all  fairness  from  Mr.  Richardson's 
certified  majority.  This  makes  Mr.  Richardson's  true  vote  127  votes, 
in  place  of  137  votes.  This  result  it  would  seem  to  be  impossible  to 
dispute. 

Shiloh  Precinct. 

By  the  vote  as  declared  by  the  State  board  of  canvassers  at  Shiloh 
precinct,  Mr.  Lee  received  143  votes,  and  Mr.  Richardson  180  votes. 
This  gives  to  Mr.  Richardson  a  majority  of  37  votes,  but  there  was 
found  an  excess  of  168  votes  in  the  box,  This  was  a  palpable  and  glar- 
ing fraud.  But  it  appears  by  the  testimony  of  W.  E.  Boykin,  page  28, 
that  at  least  189  votes  were  Republican,  "  and  Samuel  Lee's  name  was 
on  every  one  of  them";  and  that  134  Democratic  votes  were  cast,  mak- 
ing a  total  of  323  votes.     But  fhis  gives  to  Mr.  Lee  a  majority  of  55 


LEE    VS.    RICHARDSON.  535 

votes  instead  of  a  majority  of  37  for  Richardson  ;  and  so  Mr.  Richard- 
son's  assumed  majority  must  be  decreased  by  92  votes.  (See  also  Rec- 
ord, p.  26.) 

Rafting  Greek  Precinct. 

Here,  as  usual,  all  the  managers  appointed  by  the  county  commis- 
sioners were  Democrats.  One  of  them,  however,  Mr.  McLeod,  did  not 
serve  by  reason  of  a  broken  arm.  (See  Record,  j).  34.)  Prince  A. 
James,  a  colored  man,  was  chosen  fey  the  other  two  managers,  both 
Democrats,  to  iill  his  place.  (See  Record,  p.  15.)  A  fair  election  ap- 
liears  to  have  been  held,  by  all  the  testimony  given  in  evidence.  The 
result  was  that  for  Lee  were  cast  313  votes,  and  for  Richardson,  51 
votes.  This  gave  to  Mr.  Lee  a  majority  of  262  votes.  (See  Record,  pp. 
33  and  249.) 

The  returns  and  ballot-box  were  placed  by  the  managers  in  the  hands 
of  Prince  A.  James  to  be  delivered  to  the  county  commissioners.  But 
on  the  pretext  that  James  had  not  been  appointed  by  them  as  one  of 
the  managers,  these  sternly  righteous  commissioners  refused  to  count 
the  vote  at  all,  and  threw  out  the  entire  poll !  (See  testimony  of  D. 
J.  Winn,  pp.  7  and  8,  and  E.  P.  Ricker,  pp.  47  and  48.) 

Your  committee  believe  that  an  immense  majority  of  all  honest  Ameri- 
cans would  say  at  once,  since  no  one  questioned  the  integrity  of  the  elec- 
tion at  Rafting  Creek  poll,  Mr.  Lee's  majority  ought  to  be  counted  for 
him.  Your  committee  feel  that  they  are  compelled  so  to  count  the  vote ; 
and  Mr.  Lee's  majority  of  the  honest  votes,  honestly  cast,  honestly 
counted,  honestly  returned,  but  rejected  by  the  county  commissioners, 
was  202  votes. 

Carter^s  Grossing  Precinct. 

At  this  precinct,  as  in  all  the  precincts  of  the  county,  the  managers 
api)oiuted  by  the  county  commissioners  were  all  Democrats.  (See  Rec- 
ord, pp.  8  and  47.) 

At  tbis  poll  Mr.  Lee  received  4'>7  votes,  Mr.  Richardson  received  29 
votes.  This  would  give  a  clear  majority  to  Mr.  Lee  of  378  votes.  (See 
Record,  pp.  23,  249.) 

Dr.  Henry  Stucky,  one  of  the  Democratic  managers,  swears  (p.  18.) 
that  the  election  was  fairly  held;  that  the  two  supervisors,  one  a  Re- 
publican and  the  other  a  Democrat,  were  present  all  the  time ;  that  the 
managers  adjourned  once  lor  breakfast  and  once  for  dinner,  about 
twenty  minutes  (Record,  pages  24,  18),  and  left  the  box  in  the  custo  y 
of  these  two  supervisors,  one  a  Republican  and  the  other  a  Democrat, 

J.  Nelson  Carter,  one  of  the  two  United  States  supervisors,  swears 
(Record,  p.  23)  that  while  the  managers  were  absent  no  one  touched 
the  ballot-box.  The  poll-list  kept  by  the  Democratic  managers  and  the 
two  United  States  supervisors  exactly  agreed.  (See  Record,  pp.  23 
and  249.)  But  because  of  the  adjournment  by  the  Democratic  managers 
for  breakfast  and  dinner,  E.  P.  Ricker,  one  of  the  county  commissioners, 
swears,  on  page  48  of  the  Record,  that  "  Gartefs  Grossing  precinct  was 
rejected  on  the  ground  that  the  managers  adjourned  for  breakfast  and 
dinner"!  Since  no  witness  controverts  the  facts  as  stated  here,  your 
committee  is  compelled  to  correct  and  count  this  poll  and  give  to  Mr.  Lee 
407  votes  and  to  Mr.  Richardson  29  votes,  thus  counting  for  Mr.  Lee  a 
majority  of  378  votes  at  Carter's  Crossing  poll. 

We  summarize,  so  far  as  Sumter  County  is  concerned:  The  State 


536 


DIGEST  OF  ELECTION  CASES. 


board  of  canvassers  (Record,  p.  228)  certify  aiid  g^ive  to  J.  S.  Richard- 
son 2,560  votes  and  to  Samuel  Lee  1,789  votes.  This  would  give  to  Mr. 
Richardson  a  majority  of  771  votes,  and  this  majority  goes  to  make  up 
Mr.  Richardson's  majority  in  the  district  of  8,408  votes. 

But  since  your  committee  have  analyzed  the  vote  of  this  county  of 
Sumter,  so  far  as  all  the  disputed  precincts  are  concerned,  they  find 
and  summarize  aS  follows : 

Vote  of  Sumter  County. 


As    corrected    and 
found  by  the  com- 
mittee   to   be   the 
Precincts.  i  actual  vote  as  cast. 


BishopTiUe 

Lynchburg 

Providence 

Shilob 

Swimtninc;  Pens 

Wedtrefiehl 

Mfiysville 

Spring  Hill 

Corbett  Store  . . . 

Manchester 

Privateer 

Concord 

Sumter  Xo.  2 


Add  three  polls  not  included  in  the  returns  made  to  State 
canvassers : 

Sumter  No.  1 

Rafting  Creek 

Carter's  Crossing 


As  returned 

to  the 

Stat«  canvassers. 

Kicbardson. 

Lee. 

353 

9 

319 

181 

127 

40 

180 

143 

99 

233 

190 

232 

274 

257 

224 

181 

79 

346 

28 

69 

187 

7 

152 

398 

91 

2,560 

1,789 

Bichardson.      Lee, 


353 

9 

258 

242 

127 

40 

134 

189 

99 

233 

190 

232 

137 

404 

224 

181 

79 

346 

28 

69 

127 

17 

152 

398 

91 

2,306 


,054 


1,499 
313 
407 


2,  395  !       4,  272 


Lee's  majority •. | ' 1,877 

\ ! 

This  gives  a  majority  in  Sumter  County  to  Lee  of  1,877  votes,  in  place 
of  771  majority  for  Richardson,  as  accorded  him  by  the  State  board  of 
canvassers,  and  shows  conclusively  the  extent  of  the  frauds  perpetrated. 

WILLIAMSBURG   COUNTY. 


The  secretary  of  state  counts,  in  his  report,  the  county  of  Williams- 
burg as  follows : 

For  Mr.  Lee  1,585  votes  and  for  Mr.  Richardson  2,084  votes.  This 
would  give  to  Mr.  Richardson  a  majority  of  499  votes.  But  on  page 
228  of  the  Record  he  certifies  that  "no  managers'  returns  from  an)/ 
precinct  in  Williamsburg  County  are  on  file  in  his  office;"  that  ''  none 
were  sent  by  the  county  canvassers  of  said  county." 

But  the  positive  statute  law  of  South  Carolina  is  that — 

After  the  final  adjournment  of  the  board  of  county  canvassers,  and  within  the 
time  i)re8cribed  by  this  act,  the  chairman  of  said  board  shall  forward,  addressed  to 
the  governor  and  secretary  of  state,  by  a  messenger,  the  returns,  poll-lists,  and  all 
papers  appertaining  to  the  election.  (See  Stat,  of  South  Carolina,  sec.  4,  act  of  1872, 
vol.  15,  p.  171.) 

It  appears  that  three  of  the  precincts  of  this  county,  to  wit,  Gourdiu's, 
Midway,  and  Salter's,  were  thrown  out,  and  not  counted  by  the  board 
of  county  commissioners.    But  it  appears  by  the  testimony  of  Capers 


LEE    VS.    RICHARDSON.  537 

King,  who  was  the  Democratic  clerk  of  the  Democratic  board  of  county 
commissioners  (Eecord,  p.  498),  that  the  vote  for  member  of  Congress, 
as  returned  by  the  managers  of  election  for  the  precincts  of  Gourdin's,. 
Midway,  and  Salter's,  and  who  were  all  Democrats,  was  as  follows : 

Lee.  Kichardson. 

Gourdin's 217  30 

Midway 155  72 

Salter's 426  49 

Total 798  151 

Majority  for  Lee 647 

But  the  same  witness  swears,  on  Eecord,  p.  499,  that — 

The  board  of  election  commissioners  adjudged  the  votes  cast  at  Gourdin's,  Mid- 
way, and  Salter's  to  be  illegal,  and  in  the  exercise  o{  judicial  powers  as  election  commis- 
sioners did  not  count  the  same. 

Since  the  supreme  court  of  South  Carolina,  politically  opposed  to 
Mr.  Lee,  have  solemnly  decided  {Ex  parte  Mackey  et  al.  vs.  Carwile  et 
al.)  that  the  said  county  commissioners  have  no  judicial  powers  iii 
counting  the  vote  for  a  Eepresentative  in  Congress,  your  committee  i» 
constrained  to  say  that  the  House  of  Eepresentatives  is  not  bound  by 
their  attempt  to  exercise  judicial  fiinctions. 

The  objections  urged  against  the  validity  of  these  three  polls,  as  the 
record  shows,  were  not  because  of  frauds  perpetrated,  but  of  informali- 
ties on  the  part  of  the  managers  holding  the  election,  all  of  whom  were 
politically  opposed  to  Mr.  Lee.  (See  Eecord,  pp.  498  and  499.)  Your 
committee  here  remark,  with  regard  to  the  managers  who  held  the  elec- 
tion, that  the  presumption  always  is  that  a  public  officer  has  legally  dis- 
charged his  duty  until  the  contrary  appears.  They  hold,  as  did  the 
court  in  Biddle  and  Eichard  vs.  Wing  (CI.  and  H.,  504),  that — 

Nothing  short  of  the  impossibility  of  ascertaining  for  whom  the  majority  of  votes 
were  given  ought  to  vacate  an  election,  especially  if  by  such  decision  the  people  must, 
on  account  of  their  distant  and  dispersed  situation,  necessarily  go  unrepresented  for  a 
long  period  of  time.     (See  McCrary,  sec.  3U4.) 

Your  committee  believe  and  have  acted  upon  the  principle  that — 

Questions  affecting  the  purity  of  elections  are  in  this  country  of  vital  importance. 
Upon  them  hangs  the  experiment  of  self-government.  The  problem  is  to  secure  first 
to  the  voter  a  free,  Tintrammeled  vote,  and  secondly  a  correct  record  and  return  of  the 
vote.  But  these  rules  are  only  means;  the  end  is  the  freedom  and  purity  of  the  elec- 
tion. To  hold  these  rules  all  mandatory  and  essential  to  a  valid  election  is  to  sub- 
ordinate substance  to  form — the  end  to  the  means.     (McCrary,  sec.  200.) 

The  chief  objection  to  Gourdin's  poll  seems  to  be  based  on  the  testi- 
mony of  y.  W.  Badget  (Eecord,  page  717),  who  swears  that  he  lived 
about  50  yards  from  where  the  votes  were  cast.  That  he  went  to  vote 
at  half  past  5  o'clock  p.  m.  and  found  the  poll  closed,  and  was  thereby 
prevented  from  voting.  He  gives  the  names  of  four  others  who  were 
there  at  the  same  time,  and  were  likewise  prevented  from  voting.  Ue 
also  swears  that  t\to  of  these  persons  lived  within  75  yards  of  the  polls,, 
and  the  others  200  yards  away.  But  A.  M.  Gordon,  one  of  the  mana- 
gers, who  swears  he  was  a  Democrat,  also  swears  that  the  polls  were 
closed  at  Gourdin's  precinct  at  6  o'clock  p.  m.  by  his  watch.  Six  o'clock 
was  the  legal  hour  for  closing  the  polls.  Since  Mr.  Lee  received  217 
votes  and  Mr.  Eichardson  only  30  votes  at  this  poll,  and  in  view  of  the 
fact  that  all  these  five  voters  lived  so  near  the  poll,  and  the  question 
at  what  time  the  poll  was  closed  seems  to  be  fixed  by  the  wat«h  of  the 
Democratic  manager,  your  committee  cannot  agree  that  Mr.  Lee's  ma- 
jority of  187  votes  should  be  thrown  away  by  the  rejection  of  this  poll. 


538  DIGEST  OF  ELECTION  CASES. 

They  therefore  count  the  votes  at  Gourdiu's  as  217  for  Mr.  Lee  and  30 
for  Mr.  Richardsou,  as  reported  by  the  managers  who  held  the  election, 
and  who  were  politically  opposed  to  Mr.  Lee. 

Midway. 

The  vote  of  this  precinct  was  also  rejected  by  the  county  commission- 
ers. Levy  Mouzon,  one  of  the  L'uited  States  supervisors,  page  492, 
swears  that  the  manafjers  were  all  Democrats  ;  that  he  kept  a  poll-list, 
as  did  the  managers,  and  both  lists  agreed.  As  an  exhibit  to  his  depo- 
sition he  furnishes  (Record,  p.  508)  the  report  signed  by  himself  and 
J.  M.  Kennedy,  the  Democratic  supervisor,  by  which  it  appears  that 
Mr.  Lee  received  155  and  Mr.  Richardson  72  votes.  The  only  objection 
to  this  poll  is  that  the  managers,  all  politically  opposed  to  Mr.  Lee, 
closed  the  polls  at  too  early  an  hour. 

J.  J.  Morris,  one  of  these  managers,  swears  that  this  was  done  on  the 
suggestion  of  Mr.  Mouzon  (Record,  p.  717),  while  Mr.  Mouzon  swears 
(Record,  p.  493)  that  it  was  done  "at  the  suggestion  of  some  of  the 
managers."  Your  committee  thinks  that  even  if  Mouzon  gave  bad  ad- 
vice the  managers  were  not  bound  to  take  it,  and  since  the  coutestee 
does  not  even  pretend  that  any  one  was  deprived  of  voting  at  this  poll 
by  reason  of  its  too  early  closing,  your  committee  cannot  agree  on  such 
a  technicality  that  the  poll  should  be  thrown  out  and  Mr.  Lee  deprived 
of  his  majority  of  83  votes.  It  is  true  that  one  witness,  R.  K.  Hurst, 
swears  (Record,  p.  717)  that  Henr^-  Williams,  a  colored  man,  told  him 
he  intended  to  vote  the  Democratic  ticket,  but  after  Hurst  voted 
and  left  he  voted  the  other  way.  As  Williams  was  not  called,  and  the 
testimony  is  purely  hearsay,  your  committee  cannot  agree  that  this  poll 
should  be  thrown  out. 

Salter's  Precinct. 

At  Salter's  precinct  the  managers,  all  Democrats,  returned  for  Sam- 
uel Lee  426  votes  and  for  J.  S.  Richardson  49  votes.  This  gave  Mr. 
Lee  a  majority  of  377  votes.     (See  Record,  page  498.) 

J.  E.  Singletary,  United  States  supervisor,  swears  that  he  was  pres- 
ent and  saw  the  polls  were  opened  from  6  o'clock  a.  m.  to  6  o'clock  p. 
m. ;  that  there  was  no  disturbance  during  the  voting ;  that  he  kept  a 
poll-list,  and  that  it  agreed  with  a  poll- list  kept  by  the  managers.  (Rec- 
ord, p.  476.) 

Julius  B.  Grayson,  one  of  the  Democratic  managers,  swears  that  he 
and  one  B.  O.  Bristow  were  the  only  managers  who  held  the  election  ; 
that  both  served  till  a  quarter  of  an  hour  before  closing  the  polls,  when 
Bristow  became  sick  and  had  to  lie  down  (Record,  p.  708).  On  cross- 
examination  he  swears  that  the  election  was  tolerably  quiet  during  the 
day  till  about  6  o'clock ;  that  he  closed  the  poll  and  refused  to  count 
the  votes — 

Because  I  was  left  alone.  "I  tlien  iusisted  upon  carrying  it  to  my  rooms,  to  re- 
main until  Bristow  was  able  to  attend  to  his  duties,  and  the  negroes  objected  to  my 
taking  away  the  box  or  leaving  it  till  they  Avere  counted. 

It  seems  those  negroes  stuck  by  Mr.  Grayson. 

Till  I  got  Bristow  out  of  bed;  we  then  took  the  box  into  a  little  house  aad  counted 
the  votes  ;  we  then  made  our  report,  and  on  the  following  day  I  brought  the  box  over 
to  Kingstree.     (Record,  p.  708.) 

On  cross-examination  he  swears  that  the  box  was  always  in  his  sight 


LEE    VS.    RICHARDSON.  539 

until  he  went  into  a  room  to  get  Bristow  to  come  out  and  assist  him  in 
counting  the  votes ;  during  that  time  he  left  the  box  in  the  custody  of 
the  United  States  supervisors  Siugletarj,  and  one  Walter,  McCuUough. 
They  would  not  allow  him  to  take  the  box  into  the  house,  unless  they 
could  go  in  too,  and  so  he  left  the  box  with  them,  but  the  box  was 
locked  and  sealed  "  with  a  strip  of  paper  and  sealing  wax,"  and  he, 
Grayson,  had  the  key,  and  when  he  and  Bristow  came  out  it  was  iu  the 
same  condition  as  when  he  left  it.  (Record,  p.  700.)  Since  there  is 
uo  i^retense  that  the  election  was  not  fair,  since  the  box  was  not  tam- 
pered with,  and  the  result  of  the  count  was  declared  by  the  Democratic 
managers,  who  held  the  election,  your  committee  is  constrained  to  count 
this  precinct  just  as  the  managers  did,  that  is,  426  for  Lee  and  49  for 
Richardson,  giving  Lee  a  majority  of  377  votes. 

Black  Mingo. 

At  this  precinct  there  were  returned  for  Lee  110  votes  and  for  Rich- 
ardson 81  votes  making  191  votes ;  and  giving  Lee  a  majority  of  39 
votes.  (See  Record,  p.  498.)  And  this  is  corroborated  by  the  testi- 
mony of  Isaac  I.  White,  who  swears  that  191  votes  were  cast,  and  110 
counted  for  Mr.  Lee,  but  that  this  was  after  12  votes  in  excess  of  the 
poll-list  had  been  drawn  out.  These  12  votes  were  fraudulent  votes. 
He  further  swears  that  he  was  a  United  States  supervisor ;  that  he  kept 
a  little  book  to  record  the  names ;  that  the  Republicans  voted  6  voters 
at  a  time ;  that  they  came  with  open  votes  for  him  to  see,  and  folded 
them  up  and  voted  them ;  that  he  when  present  when  the  votes  were 
counted. 

Q.  Were  any  tickets  found  in  the  box  compactly  folded  together? — A.  There  were. 
Q    What  kind  ? — A.  All  Democratic  tickets. 

He  also  swears  that  there  was  an  excess  of  12  votes. 

Q.  Whose  name  was  on  the  tickets  for  member  of  Congress  so  drawn  out  f — A. 
Ten  for  Samuel  Lee  and  two  for  Richardson. 

He  further  swears  that  the  managers  were  Democrats  ;  that  14  Dem- 
ocratic ballots  were  found  with  one  or  more  Democratic  ballots  folded 
within  them :  thut  no  Republican  ballots  were  found,  and  after  destroy- 
ing these  14  ballots  there  were  still  12  ballots  iu  excess  of  the  poll-list. 
On  page  500  of  Record  he  gives  a  list  of  120  names  who  voted  for  Lee. 

Since  his  testimony  is  not  traversed,  the  inevitable  result  is  that 
Lee's  vote  should  be  increased  10,  giving  him  120,  and  Richardson  de- 
creased 10',  giving  him  but  71,  as  the  true  result  of  the  honest  vote  cast 
at  this  poll. 

Cedar  Swamp  Precinct. 

By  the  returns  of  the  managers  of  this  precinct  Mr.  Lee  received  8 
votes  and  Mr.  Richardson  107  votes. 

The  managers  were  all  Democrats.  The  regular  place  of  holding  the 
election  was  Grayson's  store.  The  election  was  held  at  a  church  three- 
fourths  of  a  mile  distant.  J.  T.  Wilson,  a  United  States  supervisor, 
was  at  Grayson's  as  early  as  2  o'clock  in  the  morning.  Before  the  polls 
were  opened  he  found  out  that  the  place  of  holding  the  election  had 
been  removed  to  the  church,  but  he  swears  he  arrived  there  17  minutes 
by  the  watch  before  C  o'clock  a.  m.  The  polls  were  already  opened.  He 
remained  there  till  after  the  close  of  the  polls ;  saw  the  box  opened  and 
the  ballots  counted. 


540  DIGEST    OF    ELECTION    CASES. 

Q.  When  the  box  'was  opened  were  there  any  ballots  found  with  one  or  more  ballots 
folded  therein? — A.  Yes,  sir. 

Q.  How  many  and  what  kind  ? — A.  Six  or  seven  bunches,  Democratic  ballots,  all 
aggregating  40. 

He  farther  swears  (Record,  p.  486)  that  these  40  ballots  were  de- 
stroyed by  the  mauagers,  but  that  143  votes  still  remained  iu  the  box 
in  excess  of  those  who  voted  and  whose  names  were  on  the  poll-list 
(Record,  p.  480),  which  showed  that  only  115  votes  were  cast  at  that 
poll.  Under  the  law  of  South  Carolina  143  ballots  had  to  be  with- 
drawn to  bring  down  the  number  left  in  the  box  to  correspond  with  the 
number  of  votes  actually  cast. 

The  majority  at  this  poll  was  honestly  Democratic.  The  managers 
were  all  Democrats ! 

The  fraudulent  votes  found  in  the  box  were  Democratic.  It  was  a 
Democratic  fraud.  And  in  the  withdrawal  121  Democratic  votes  were 
withdrawn  and  23  Republican.  Wilson  swears  that  on  the  22  Repub- 
lican ballots  withdrawn  was  Lee's  name  as  a  candidate  for  Congress, 
Those  22  votes  should  be  counted  for  him,  because  they  were  honestly 
cast  for  him. 

Having  been  withdrawn,  22  fraudulent  votes  were  left  in  the  box  in 
their  place  and  counted  for  Richardson,  and  his  vote  should  be  dimin- 
ished by  the  same  number,  since  no  witness  contradicts  the  testimony 
of  Wilson.  Adding  22  votes  to  the  8  counted  for  Lee  will  give  him  30 
votes,  and  subtracting  the  22  fraudulent  votes  which  were  not  cast  for 
Richardson  from  the  107  counted  for  him  will  give  him  85  votes. 

Greelyville  Precinct. 

At  this  precinct  the  managers  returned  for  Mr.  Lee  118  votes  and 
for  Mr.  Richardson  117,  giving  Lee  a  majority  of  1. 

All  the  managers  were  Democrats.     (Record,  page  495.) 

F.  J.  Felix,  United  States  supervisor,  was  thereat  the  opening  of  the 
polls  and  staid  till  the  ballots  were  counted.  He  swears  that  Samuel 
Lee  received  141  votes  and  J.  S.  Richardson  95.  (See  Record,  pj). 
495  and  503.)  He  also  swears  that  there  was  an  excess  of  30  more  bal- 
lots in  the  box  than  there  were  names  on  the  poll-list.  In  this  he  is 
corroborated  by  W.  J.  Ferrell,  Mr.  Richardson's  witness,  who  swears  to 
the  same  fact,  and  who  also  swears  that  the  election  was  peaceable. 
(Record,  p.  704.)  Both  witnesses  agree  that  30  ballots  were  withdrawn 
from  the  box  by  the  Democratic  managers. 

Felix  swears,  and  is  not  contradicted,  that  25  of  the  ballots  with- 
drawn were  Republican,  and  had  Lee's  name  on  them  for  member  of 
Congress,  and  5  were  Richardson's  tickets.  He  also  states  (Record, 
p.  496)  that  one  Jim  Lescone  was  detected  in  the  act  of  voting  two 
Democratic  tickets. 

It  is  evident  that  the  fraud  perpetrated  At  this  poll  was  a  Democratic 
fraud ;  that  25  honest  votes  cast  for  Lee  were  withdrawn,  and  5  votes 
cast  for  Richardson  to  equal  the  30  fraudulent  votes  stuft'ed  into  the 
box,  which  were  all  Richardson's  tickets.  Thus  Mr.  Lee's  vote  was 
decreased  25  and  Richardson's  vote  was  increased  25  by  this  fraudu- 
lent stuffing  of  the  ballot-box.  Your  committee  purged  this  box  by  de- 
ducting 25  votes  from  Richardson  and  adding  25  votes  to  Lee,  and  this 
would  give  at  Greelyville  poll  a  majority  of  51  for  Lee. 

Kingstree  Precinct. 
The  whole  number  of  votes  counted  at  this  poll  by  the  managers  of 


LEE    VS.    RICHARDSON.  541 

election  for  member  of  Congress  was  897,  of  which  they  certify  that 
Samuel  Lee  received  592  and  John  S.  Eichardson  305.  (Eecord,  p. 
504.) 

This  gave  Lee  a  majority  of  287.  But,  as  usual,  there  was  an  excess 
of  110  ballots  found  in  the  box.  One  Republican  ballot  was  found  with 
one  or  more  Republican  ballots  within  the  same,  while  7  Democratic 
ballots  were  found  with  one  or  more  Democratic  ballots  within  the  same. 

The  number  of  ballots  drawn  out  of  the  baUot-box  and  destroyed  by 
the  managers  by  reason  of  excess  over  the  poll-list  was  110:  74  of  these 
bore  tlie  names  of  the  Republican  candidates  and  36  bore  the  names  of 
the  Democratic  candidates.  It  is  evident  a  gross  fraud  was  committed. 
It  is  equally  evident  that  Mr.  Lee  was  cheated,  but  your  committee  is 
unable  to  say  to  what  extent,  and  therefore  do  not  undertake  to  purge 
this  poll. 

Muddy  Greek  Precinct. 

At  this  poll,  by  the  returns,  Mr.  Richardson  received  177  votes,  and 
Mr.  Lee  none.  S.  G.  Graham,  a  United  States  supervisor,  swears 
(Record,  p.  490)  that  the  election  had  tlieretofore  been  held  at  Ard's 
store ;  that  this  was  the  old  voting  place.  The  managers  opened  the 
poll  at  a  school-house  some  200  yards  distant.  In  this  he  is  corrobo- 
rated by  W.  H.  Harmon,  a  witness  for  Mr.  Richardson,  and  a  Democrat. 
(Record,  p.  720.)  Graham  swears  (Record,  p.  488)  that  he  showed  his 
commission  to  the  managers  and  asked  permission  to  act  as  United 
States  supervisor  to  the  election ;  that — 

Henry  Harmon,  one  of  the  managers,  drew  his  revolver  on  me  and  said  my  authority 
was  no  account ;  he  put  his  hand  in  his  pocket,  drew  out  his  revolver,  and  presented 
it  to  me  in  a  threatening  manner. 

He  also  states  that  Mr.  Huggins,  the  other  manager,  when  Harmon 
drew  his  pistol  on  him,  went  oft',  and  Harmon  said  nothing,  but  shook 
his  head. 

Huggins  and  Harmon  both  swear  that  Graham's  statement  is  false, 
and  Huggins  swears  that  the  Republicans  did  not  vote  at  all;  they 
went  oft".  He  also  swears  there  were  about  35  or  40  negroes  in  the 
crowd. 

Your  committee  leave  these  meager  facts  without  further  comment. 

Prospect  precinct. 

At  this  precinct  the  managers'  returns  gave  Samuel  Lee  120  votes 
and  John  Richardson  111  votes;  Lee's  majority,  9  votes. 
All  the  managers  were  Democrats.  (Record,  p.  468.^ 
As  usual,  there  was  an  excess  of  ballots  in  the  box  over  the  names 
on  the  poll-list  here  to  the  number  of  31.  (John  Roumond,  (Record,  p. 
46G.)  He  also  swears  that  the  Republican  tickets  were  on  much  thicker 
paper  and  could  be  easily  told ;  (Record,  p.  468) ;  that  on  drawing 
out  the  excess  29  Republican  and  2  Democratic  ballots  were  with- 
drawn and  destroyed.  (Record,  p.  466.)  In  this  he  is  corroborated  by 
A.  A.  Brown,  one  of  the  Democratic  managers,  who  swears  that  he  with- 
drew the  excess  from  the  box.  Asked  if  he  could  tell  a  Republican 
from  a  Democratic  ticket  in  so  withdrawing  them,  he  answered,  "  I  could 
not  say  i)ositively." 

Q.  Was  there  not  enough  difference  so  that  if  you  had  been  disposed  you  could 
have  distinguished  between  them  ? — A.  There  was. 


542 


DIGEST  OF  ELECTION  CASES. 


Asked  wbetlier  the  excess  was  drawn  out  fairly,  or  were  Eepublican 
ballots  frauduleutly  fished  out,  be  answered,  "  They  were  fairly  drawn 
out  according  to  law."  He  also  swore,  "  I  claim  to  be  a  true  Democrat." 
(See  Eecord,  p.  721.)  Your  committee  thinks  that  little  comment  is 
necessary  upon  this  testimony. 

It  is  evident  a  fraud  was  perpetrated  by  the  stuflBng  of  the  ballot- 
box;  it  is  equally  evident  that  it  was  a  fraud  by  which  29  votes  hon- 
estly cast  for  Mr.  Lee  were  withdrawn  and  destroyed ;  that  Mr.  Lee's 
vote  should  be  increased  by  29  votes,  which  were  honestly  cast  for  him 
but  were  not  counted  by  the  managers;  that  Mr.  Richardson's  vote 
should  be  decreased  by  the  same  number  of  votes  which  the  managers 
counted  for  him  but  which  were  not  cast  for  him  by  the  legal  voters. 

Making  this  correction,  and  it  is  evident  that  Mr.  Lee  received  from 
the  voters'  hands  149  votes,  and  Mr.  Eichardson,  in  like  manner,  82 
votes.  Lee's  majority  was  thus  67  in  place  of  9  votes,  as  was  reported 
by  the  managers. 

In  view  of  the  above  your  committee  correct  the  vote  of  Williams- 
burg County,  as  follows: 

By  the  returns  of  the  State  board  of  canvassers  Eichardson  received 
2,084  votes  and  Lee  1,585  votes.  This  would  give  Richardson  a  ma- 
jority of  499,  which  it  is  evident  goes  to  make  up  Eichardson's  assumed 
majority  of  8,468. 

Your  committee  here  summarize  their  correction  of  the  vote  of  this 
county  by  precincts,  as  follows : 

Vote  of  Williamsiurg  County. 


Precincts. 


As  returned  to  the 
State  canvassers. 


Bichardson. 


Lee. 


As  corrected  by  the 
committee. 


Kiohardson. 


Lee. 


Anderson 

Black  Mingo 

Cedar  Swamp 

Groham  Cross-Roads 

Greelyrille , 

Indlanto  wn 

Kingstree 

Mnddy  Creek 

Pipkins 

Prospect 

School-honse 

Scrauton 

Sutton 


Add  three  polls  not  included  in  the  retnm  made  to  the 
State  canvassers : 

Midway 

Salter's 

Gourdin's 


Lee's  majority 


112 

81 
107 
563 
117 

18 
309 
117 

74 
111 

83 
333 

75 


59 

110 

8 

78 
118 
348 
592 


109 
120 
14 


138 


112 

59 

71 

120 

85 

30 

563 

78 

95 

141 

18 

348 

305 

592 

117 

74 

109 

82 

149 

83 

14 

75 

138 

2,013        1,778 


2,164 


155 
426 
217 


2,576 
412 


The  above  table  shows  the  vote  of  this  county  as  shown  by  the  testi- 
mony, and  in  place  of  a  majority  for  Eichardson  of  499,  as  given  him  bj' 
the  State  board  of  canvassers,  your  committee  find  a  majority  of  412 
votes  for  Lee,  and  we  so  accord  it. 


HOREY  COUNTY. 


The  State  board  of  canvassers  certify  that  Mr.  Eichardson  received 


LEE    VS.    RICHARDSON.  543 

in  this  county  2,173  votes  and  Mr.  Lee  599,  giving  Mr.  Richardson  a  ma- 
jority of  1,574.  (See  Record,  p.  228.)  But  it  appears  from  the  Record, 
page  236,  that  tlie  board  of  county  canvassers  did  not  canvass  or  count 
the  vote  cast  at  Martin  Hill  precinct,  in  that  county ;  their  reason  for 
so  doing  they  state  as  follows  : 

In  view  of  tbe  facts  as  set  forth  in  affidavits  hereto  annexed,  to  the  effect  that  the 
polls  were  not  opened  at  above  precinct  at  the  hour  prescribed  by  law,  the  board  of 
canvassers,  on  motion,  decided  that  the  vote  of  this  precinct  be  not  canvassed  or  in- 
cluded in  the  general  statement. 

The  ex  parte  affidavits  referred  to  are  found  in  the  Record  on  page  237. 

Moses  F.  Sarvis  swears  that  owing  to  the  fact  that  Nimrod  Davis, 
one  of  the  managers,  did  not  arrive  till  about  that  hour,  the  polls  were 
not  opened  until  about  a  quarter  past  eight  o'clock  in  the  morning. 

John  Martin  swore  he  was  there  at  7  o'clock  and  could  not  deposit 
his  vote  because  the  polls  had  not  been  opened. 

Frank  Wilson  swore  that  he  was  there  at  7  o'clock  and  could  not 
deposit  his  vote  because  the  polls  had  not  been  opened  up  to  that  hour, 
"  and  that  he  and  others  had  to  go  to  Cedar  Grove  to  vote." 

Upon  this  ex  parte  testimony  the  i)oll  was  rejected.  The  three  man- 
agers who  held  the  election  certified  (Record,  p.  236)  that  Mr.  Lee  re- 
ceived 172  votes  and  Richardson  13  votes,  giving  Lee  a  majority  of 
159  votes,  which  he  lost  in  the  count  by  the  rejection  of  this  poll. 

McCrary  declares  (sec.  114) : 

That  a  few  minutes'  delay  in  opening  the  polls  will  make  no  difference,  but  several 
hours'  delay  may  render  the  election  void,  and  certainly  will  have  that  effect  if  the 
party  complaining  of  it  can  show  that  he  has  been  injured  thereby. 

But  when  we  analyze  the  case  it  appears  that  only  185  votes  were  cast 
at  that  poll;  that  the  polls  were  open  continuously  fromS^  a.  m.  till  6  p. 
m.,  and  that  some  and  probably  all  of  the  few  persons  there  about  7 
o'clock  in  the  morning  went  to  Cedar  Grove  and  voted.  It  does  not  ap- 
pear for  whom  they  voted  or  wished  to  vote.  This  is  one  of  the  few 
polls  at  which  there  is  no  pretense  of  intended  fraud.  There  is  not  the 
slightest  proof  that  either  Lee  or  Richardson  lost  a  single  vote  by  the 
failure  to  open  the  polls  promptly  at  6  o'clock  in  the  morning.  Your 
committee  feel  that  the  simplest  statement  of  the/ac^«  aflbrds  the 
strongest  commentary.  And  we  count  this  poll  as  the  managers  did, 
and  accord  to  Lee  159  majority,  and  as  the  result  of  the  foregoing  your 
committee  add  to  Mr.  Richardson's  certified  vote  in  this  county  13  votes 
and  to  Mr.  Lee's  172  votes,  making  the  vote  as  actually  cast  by  the 
voters  and  counted  by  the  managers  for  Mr.  Richardson  2,186  votes  and 
Mr.  Lee  771  votes,  giving  Richardson  a  majority  of  1,415  votes,  instead 
of  1,574,  as  allowed  him  by  the  State  board  of  canvassers. 

DAELINGrTON   COUIS'TY. 

The  State  board  of  canvassers  certify  that  Mr.  Richardson  received 
in  this  county  4,671  votes  and  Mr.  Lee  2,117  votes,  giving  Richardson 
a  majority  of  2,554  votes.     (See  Record,  p.  228.) 

But  the  secretary  of  state  certifies  on  page  228  of  the  Record  that  "  no 
managers'  returns  from  any  precinct"  in  Darlington  County  were  on 
file  in  his  office,  nor  were  any  returns  from  any  voting  precinct  in  said 
county  sent  to  his  office  by  the  county  canvassers.  It  is  impossible, 
therefore,  to  ascertain  what  was  the  vote  at  any  precinct  in  this  county 
by  anything  in  the  record  from  the  State  board  of  canvassers.  Only  the 
gross  result  is  given  as  above. 

But  on  pages  570,  571  of  the  Record  the  contestee,  Richardson,  for 


544  DIGEST    OF    ELECTION    CRSES. 

the  purpose  of  supplying  this  deficiency,  introduced  in  evidence  a 
schedule  shovriug  the  precinct  managers'  returns  for  each  and  every 
polling  place  in  Darlington  County,  by  which  it  appears  that  according 
to  the  managers'  returns  Richardson  received  4,567  votes  in  place  of 
4,671  votes,  as  certified  to  by  the  secretary  of  state;  in  other  words,  the 
secretary  of  state  gives  Richardson  104  votes  more  than  did  the  man- 
agers who  held  the  election. 

But  section  4  of  the  act  of  1872  of  South  Carolina  made  it  the  duty  of  the 
•chairman  of  the  board  of  county  canvassers  to  forward  bj*  a  messenger  to 
the  governor  and  secretary  of  state  "  the  returns,  poll-lists,  and  all  the 
papers  appertaining  to  the  election."  We  think  it  cannot  be  questioned 
that  the  statement  of  the  managers  who  held  the  election,  verified  by 
their  returns  and  poll-lists,  &c.,  is  better  evidence  than  the  certificate  of 
the  secretary  of  state,  who  certified  that  he  never  saw  the  returns  and 
poll-lists,  for  they  were  never  sent  to  him  as  the  law  requires. 

It  is  manifest  that  Mr.  Richardson's  majority  grew  to  the  number  104 
votes,  by  his  own  testimony,  after  the  polls  were  closed  and  the  result 
declared. 

Florence  Precinct. 

Contestant  in  his  notice  of  contest  distinctly  charged  that  the  poll- 
list  at  Florence  was  "  falsified  by  the  insertion  thereon  of  fictitious 
names."  This  is  as  distinctly  denied  by  contestee.  L.  W.  Gadsden,  a 
United  States  supervisor,  swears  there  were  18  more  names  on  the  poll- 
list  kept  by  the  managers  than  there  were  ballots  in  the  box.  (Record, 
p.  371.)  In  this  he  is  corroborated  by  W.  J.  Bradford,  who  was  pre- 
sent and  kept  tally.  (Record,  p.  176.)  He  swears  there  were  1,048 
names  on  the  poll-list  kept  by  the  managers,  and  only  1,030  ballots 
in  the  box.  Both  these  witnesses  were  sworn  and  examined  on  February 
25,  1881. 

On  the  loth  of  March  of  the  same  year,  William  McKenzie  (Record, 
\}.  507),  a  witness  for  contestee,  swore  he  was  one  of  the  managers  at 
this  poll,  and  that  all  the  managers  were  Democrats.  He  was  exam- 
ined at  length,  but  he  does  not  deny  that  the  poll-list  was  falsified  as 
above  set  forth. 

Capt.  E.  W.  Lloyd  (Record,  p.  518),  also  a  witness  for  contestee, 
was  examined  on  the  16th  of  March,  1881.  He  swore  he  was  clerk  of 
the  board  of  managers  ;  he  was  also  a  Democrat.  He  ought  to  know 
all  about  the  poll-list.  He  does  not  deny  or  even  mention  the  alleged 
falsification  of  the  poll-list  by  the  insertion  thereon  of  18  fictitious 
names.  No  witness  in  all  the  record  denies  the  statements  of  Gadsden 
and  Bradford  in  regard  to  the  i)oll-list  at  Florence,  though  some  16 
were  put  upon  the  stand  and  examined  bv  contestee  touching  that 
poll. 

L.  W.  Gadsden,  United  States  supervisor  (Record,  p.  365),  swears 
that  he  arrived  at  the  poll  a  few  minutes  after  5  o'clock  a.  m. 

The  managers  were  then  there ;  the  door  was  guarded  where  the  poll  was ;  the 
place  was  crowded  with  a  lot  of  Democrats ;  I  could  uot  get  withiu  ten  feet  of  the 
door. 

He  states  that  a  few  minutes  before  the  poll  was  opened  he  attempted 
to  go  in  to  witness  the  opening  and  to  examine  the  box  ;  that  he  was 
obstructed  from  getting  in  by  a  crowd  of  town  authorities  or  police- 
men ;  that  he  showed  his  commission  as  United  States  supervisor,  and 
told  them  he  was  going  in ;  that  one  Captain  Gaillard  told  him  he 
must  wait  until  he.  Captain  Gaillard,  saw  Captain  Blackwell,  to  find 


LEE    VS.    RICHARDSON.  545 

out  if  he  bad  any  rigbt  there  or  not.  Gaillard  came  back  and  said  it 
was  all  right.  He  started,  and  was  stopped  again.  Captain  Gaillard 
then  assisted  him,  and  he  then  got  in. 

The  box  was  locked,  and  the  voting  had  been  going  on  ten  or  fifteen 
minutes.  "  I  asked  the  managers  to  let  me  copy  the  names  oft'  their  poll- 
list  ;  they  said  they  had  not  time  to  stop,  and  could  not  stop  the  clerk." 

He  further  testifies : 

I  asked  to  be  allowed  to  have  a  clerk,  and  was  refused,  and  was  not  allowed  to 
copy  those  names  on  the  managers'  poll-list  that  had  voted.     (See  Record,  p.  365.) 

He  also  testifies,  on  Eecord,  page  369,  on  his  cross-examination : 

Q.  Did  you  stay  there  uU  day  ? — A.  Yes,  sir;  only  absent  for  about  three  minutes. 

Q.  How  do  you  account  for  the  fact  that  you  were  there  all  day  as  a  life-long  Re- 
publicau,  watching  the  election,  for  there  being  more  names  on  that  poll-list  than 
there  were  ballots  in  the  box  ? — A.  They  viust  have  had  a  false  poll-Unt  prepared  hefore- 
hand  that  they  carried  in  there,  and  failed  to  put  enough  ballots  in  the  iox  to  tally  icith  the 
poll-list.  I  was  not  allwoed  to  examine  the  list.  The  box  was  closed  before  I  was 
allowed  to  go  in. 

Q.  Did  you  witness  the  count  ? — A.  I  did. 

Q.  You  stated  that  you  were  there  all  day  except  about  three  minutes.  Now  did  you 
or  not  see  the  names  that  were  written  on  the  poll-list? — A.  I  did  not,  for  I  was  not 
allowed  to  examine  it. 

Q.  Did  you  ask  to  be  allowed  to  examine  that  poll-list  ? — A.  I  did  ask,  and  asked 
further  to  be  allowed  to  copy  from  it. 

Q.  Who  did  you  ask  ? — A.  The  managers. 

Q.  What  time  of  day  was  it  when  you  asked  to  be  allowed  to  copy  and  examine  the 
poll-list  ? — A.  I  first  asked  in  the  morning  when  the  voting  commenced,  and  again 
that  night  when  the  polls  closed. 

Q.  What  did  the  managers  say  in  reply  to  your  request  ? — A.  They  said  I  could  not 
be  allowed  to  interrupt  the  clerk.  That  was  in  the  morning.  But  at  night  when  I 
asked  to  be  allowed  to  examine  the  list,  they  refused  to  let  me  examine  it,  but  had 
no  objections  tothe  clerk  calling  the  names  so  I  could  take  them  down,  but  saiditwas 
too  late  to  remain. 

Q.  Who  was  the  clerk  ? — A.  Captain  E.  W.  Loyd. 

On  his  cross-examination  he  further  states  (Record,  p.  368) : 

Q.  What  time  did  you  reach  the  polls  on  the  morning  of  the  election  T — A.  A  few 
minutes  after  five  o'clock. 

Q.  What  did  you  see  there  ? — A.  I  saw  a  lot  of  Democrats  around  the  polls  and  the 
door  guarded  by  policemen  and  constables. 

Q.  Did  you  try  to  gain  admission  to  the  polls  ? — A.  I  did. 

Q.  To  whom  did  you  apply  for  admission  f — A.  I  started  to  the  polls  and  Tras  stopped 
by  policemen  and  constables  and  told  that  I  could  not  go  up. 

Q.  What  policemen  and  constables  denied  you  admission? — A.  T.  D.  Brunson,  John 
Dockery,  E.  M.  Selfe  ;  those  were  the  policemen,  and  Z.  T.  Kershaw  was  the  constable. 

Q.  What  did  they  tell  you  f — A.  That  I  could  not  go  up  to  the  polls.  I  told  them  I 
was  United  States  supervisor,  and  showed  them  my  commission,  and  told  them  I  mast 
go  up. 

Q.  Is  that  all  they  said  to  you  ? — A.  Yes;  that  I  could  not  go  up,  and  shoved  me  out 
of  the  way. 

Q.  Did  they  or  not  tell  you  that  nobody  but  policemen  and  constables  could  go  into 
that  house  ? — A.  They  had  a  line  drawn,  and  told  me  that  nobody  else  had  any  right 
in  there. 

Q.  Did  they  or  not  tell  you  that  nobody  but  policemen  and  constables  could  go  into 
that  house  ? 

(Counsel  for  coutest«e  demands  an  answer,  yes  or  no.) 

A.  I  have  answered  it  already. 

Q.  Did  you  show  your  commission  to  anybody  ? — A.  I  did. 

Q.  To  whom  did  you  show  it  ?— A.  I  showed  it  to  the  very  men  that  stopped  me, 
and  Captain  Gaillard. 

Q.  Did  they  then  admit  you? — A.  Captain  Gaillard  told  me  to  wait  until  he  saw 
Captain  Blackwell. 

Q.  Did  he  say  anything  else  besides  this  ? — ^A.  Not  until  after  he  saw  Captain  Black- 
well. 

Q.  Did  he  or  not  tell  you  to  wait  until  he  saw  Captain  Blackwell  as  to  whether  or 
not  you  had  a  right  to  go  in  ? — A.  He  did ;  but  Captain  BlackweU  is  a  private  citizen, 
and  I  did  not  think  he  had  a  right  to  pass  upon  my  commission. 

H.  Mis.  35 35 


546  DIGEST    OF   ELECTION    CASES. 

He  also  swears  (Eecord,  p.  3Q6)  that  300  or  400  Eepiiblicans  were 
standing  in  line,  ready  to  vote,  when  the  polls  closed,  while  the  Demo- 
crats were  allowed  to  vote  freely  and  unobstructedly  during  the  day ; 
that  late  in  the  evening  60  or  75  Democrats  came  in  from  Timmonsvillej 
that  the  line  of  Eepublicans  that  had  been  standing  there  all  day  were 
made  to  stand  back,  by  the  constables  and  town  marshals,  and  those 
men  from  Timmonsville  allowed  to  go  up  and  vote.  He  is  corroborated 
by  208  voters  who  were  prevented  from  voting,  whose  depositions  are 
found  between  pages  139  and  342  of  Eecord.  They  all  swear  they  de- 
sired to  vote  for  Samuel  Lee,  but  were  forcibly  prevented  from  getting 
to  the  ballot-box.  Asked  why  they  did  not,  the  answers  were,  "  because 
the  Democrats  would  not  let  me  get  to  the  polls."  Witness  after  wit- 
ness swears  that  he  was  there  from  6  o'clock  a.  m.  to  6  o'clock  p.  m. 
trying  to  vote.  What  was  done  was  excused  by  Mr.  Eichardson  (brief, 
p.  148)  on  the  ground  that  the  Eepublicans  intended  to  take  possession 
of  the  polls  and  vote  first,  and  asks — 

Can  the  Democrats  be  blamed  for  standing  their  ground  and  voting  first  and  before 
they  gave  way  to  the  colored  voters,  "who  had  laid  a  trap  in  which  they  were  caught  f 

Surely  not,  but  neither  party  had  the  right  to  prevent  the  other  party 
from  voting. 

John  T.  Rafra  was  United  States  supervisor  at  Timmonsville,  and 
swears  (Eecord,  p.  85)  he  saw  a  crowd  of  Democrats,  he  counted  75  on 
the  top  of  the  flat  cars,  '<and  the  coach  was  full  of  them,"  going  in  the 
direction  of  Florence.  Heswears  they  all  voted  before  leaving  Timmons- 
ville. In  this  he  is  corroborated  by  John  E.  Keeler  (Eecord,  p.  374), 
who  testifies  he  counted  75,  and  that  everj'  one  of  them  had  voted  before 
they  left  Timmonsville.  S.  W.  Gadsden  gives  the  names  (Eecord,  p, 
365)  of  persons  he  knew  who  came  from  Timmonsville  and  voted  at 
Florence,  viz,  Alexander  Taylor,  Yauty  Byrd,  H.  M.  Oliver,  AV.  J. 
Stradford,  and  George  Montgomery.  l!fot  one  of  these  persons  was 
called  in  rebuttal!  The  few  witnesses  examined  by  Mr.  Eichardson 
touching  Florence  poll  were  the  officers  who  held  the  election,  the  po- 
liceman who  kept  the  colored  Eepublicans  from  the  polls,  and  a  few  act- 
ive Democratic  partisans. 

We  have  seen  (Eecord,  p.  571)  that  the  contestee  puts  in  evidence 
a  schedule  of  the  vote  at  each  precinct  in  Darlington  County,  accom- 
panied by  the  certificate  of  J.  N.  Garner,  the  clerk  of  the  court  of  com- 
mon pleas,  that — 

The  schedule  represents  truly  and  correctly  the  balloting  for  member  of  the  Forty- 
seventh  Congress. 

Sworn  as  a  witness,  the  same  Garner  testifies  as  follows  (Eecord,, 
p.  738,  bottom): 

Q.  Have  you  not  had  occasion  to  certify  to  the  correctness  of  the  precinct  returns 
touching  the  last  election  for  member  of  Congress  ?— A.  I  don't  think  I  did,  because 
I  could  not  certify  to  the  correctness  of  the  returns,  as  it  seems  to  me  that  a  commis- 
sioner ought  to  do  that. 

Q.  Did  you  or  not  f — A.  I  did  not. 

It  appears  further,  by  his  testimony,  that  the  precinct  returns,  in- 
stead of  being  sent,  as  the  law  requires,  to  the  secretary  of  state,  were 
with  the  ballot-boxes  placed  in  the  jury-room  opening  into  the  court- 
room, which  was  open  for  all  public  purposes,  and  only  when  not  used 
was  it  locked  up.  Two  terms  of  court  were  passed  before  he  was  ex- 
amined. 

Your  committee  feel  constrained  to  say  we  must  reject  Florence  poll, 
because  there  was  an  unlawful  interference  with  the  United  States  su- 


LEE   VS.   EICHARDSON.  547 

pervisor  of  election,  whereby  he  was  prevented  from  discharg:ing  the- 
duties  which  were  committed  to  his  hands  by  the  law  of  (^ouj^ress ;  be- 
cause it  is  clear  that  the  poll-list  at  Florence  was  falsified  by  the  in- 
sertion thereon  of  fictitious  names  by  the  officers  of  the  election ;  be- 
cause it  is  evident  that  a  crowd,  the  exact  number  of  which  it  is  impos- 
sible to  say,  who  had  already  voted  at  Timmonsville,  were  permitted 
to  vote  at  Florence  for  Kichardson,  while  more  than  200  of  Mr.  Lee^si 
supporters,  standing  in  line  all  day,  were  forcibly  prevented  from  vot- 
ing at  all ;  and  because  the  evidence  as  to  what  the  actual  vote  at  Flor- 
ence poll  was  is  so  unreliable  as  to  be  utterly  without  credit. 

The  conduct  of  the  election  officers  was  such  as  to  destroy  the  integ- 
rity of  their  returns,  even  if  we  had  any  means  of  knowing  what  those 
returns  were.  There  is  no  proof  aliunde  how  the  vote  stood.  The 
election  was  so  utterly  unfair,  by  reason  of  fraudulent  voting  and  forci- 
ble preventing  of  honest  voting  as  to  give  us  no  course  but  to  reject 
the  poll,  which  we  accordingly  do. 

Darlington  Precinct. 

What  the  exact  vote  at  this  precinct  was  we  have  no  means  of  de- 
termining other  than  the  certificate  of  J.  IS".  Garner,  the  clerk  of  the 
court  of  common  pleas  for  that  county,  which  was  introduced  by  Mr- 
Richardson,  on  page  571  of  the  Record.  But  we  have  already  seen  iu 
the  case  of  Florence  precinct  that  the  same  witness.  Garner,  testifies^ 
that  he  never  did  certify  to  the  correctness  of  the  schedule  found  od 
page  571  of  the  Record,  in  which  Richardson  is  set  down  as  having  re- 
ceived 1,271  votes  and  Lee  117  at  Darlington  precinct.  On  pages  737 
and  738  of  the  Record,  the  same  witness.  Garner,  testifies  as  follows,  on 
the  15th  of  April,  1881,  when  interrogated  as  to  the  returns  of  the  pre- 
cinct managers : 

A.  Election  papers  were  tiled  in  my  office  by  the  commissioner  of  election,  J.  O. 
McCall. 

Q.  Please  state  what  those  papers  were. — A.  I  cannot;  I  did  not  examine  them. 

Q.  Have  you  not  had  occasion  to  examine  those  papers  since  they  have  been  filed 
in  your  office  ? — A.  I  have  not. 

Q.  Then  you  have  no  idea  of  what  papers  are  filed  in  your  office  bearing  upon  th& 
election  of  member  of  Congress  in  Darlington  County  at  the  last  election  ? — A.  I 
know  there  were  election  returns  bearing  upon  the  last  election.  They  have  been 
examined  repeatedly  by  others,  but  not  by  myself. 

Q.  Do  you  know  if  those  returns  in  your  office  are  correct  or  not? — ^A.  I  do  not 
know  anything  about  them. 

Q.  "Were  those  returns  tiled  in  your  office  delivered  to  you  in  or  out  of  the  ballot- 
boxes? — A.  They  were  delivered  to  me  in  an  envelope  outside  of  the  ballot-boxes. 

Q.  Were  the  ballot-boxes  ever  filed  or  deposited  in  your  office  ? — A.  They  were,  a» 
they  usually  have  been  in  my  office. 

Q.  Have  you  ever  had  occasion  to  examine  the  papers  or  seen  in  those  boxes  ? — A- 
I  have  never  examined  the  papers  and  have  never  seen  in  the  boxes  until  yesterday. 

In  this  testimony  he  is  corroborated  by  J.  G.  McCall,  who  was  chair- 
man of  the  county  board  of  commissioners.  On  page  110  of  the  Record 
he  testifies  as  follows  : 

Q.  Did  you  make  any  returns  to  the  secretary  of  state  showing  the  votes  cast  at 
the  separate  precincts  throughout  the  county  ? — A.  We  did  not. 

Q.  What  did  your  board  do  with  the  returns  from  the  various  precincta  throughout 
the  county  ? — A.  I  think  those  returns  were  put  back  in  the  ballot-boxes  and  turned 
over  to  the  clerk  of  the  court. 

Q.  Will  you  be  positive  that  such  disposition  was  made  of  them  T — A.  That  is  ray 
recollection  of  it. 

On  page  109  of  the  record,  when  asked  if  he  could  state  what  wa» 


548  DIGEST    OF   ELECTION    CASES. 

the  vote  at  Darlington  precinct  for  member  of  Congress,  he  answered, 
imge  110,  top :  "  I  cannot.^'' 

It  thus  appears  by  the  testimony  of  McCall,  tlie  chairman  of  the 
board  of  county  commissioners,  who  testifies  that  lie  made  uo  return  of 
what  the  vote  was  at  Darlington  precinct,  either  to  the  secretary  of 
state — which  is  corroborated  by  the  certificate  of  the  secretary  of  state, 
who  testifies  that  no  such  returns  were  made  to  him,  page  228 — or  to 
the  county  clerk,  and  by  the  testimony  of  the  clerk  himself,  on  page 
738,  who  also  swears  he  never  examined  the  managers'  returns  from  the 
various  precincts  of  Darlington  County  showing  the  results  of  the  elec- 
tion held  in  1880  for  member  of  Congress. 

It  further  appears  by  the  testimony  of  George  W.  Brown,  Mr.  Eichard- 
son's  own  attorney,  who  was  i)ut  upon  the  stand  by  Mr.  Lee,  in  rebuttal, 
that  he  found  the  precinct  returns  in  the  ballot-boxes  in  one  of  the  jury- 
rooms  of  the  court-house.     (Eecord,  p.  736.) 

On  the  cross-examination  of  Garner,  the  clerk,  by  the  same  witness, 
Brown,  acting  as  the  attorney  for  Mr.  Richardson,  testifies  as  follows 
(Record,  p.  739) : 

Q.  You  say  that  the  hallot-boxes,  with  what  they  contained,  upon  being  returned 
to  you  after  the  last  election,  were  deposited  in  a  jury-room  upstairs  in  the  court- 
house ?— A.  They  were. 

Q.  Have  you  not  charge,  and  do  you  not  keep  the  keys  of  that  court-house  by  au- 
thority of  law  ? — A.  I  do. 

Q.  The  court-room  proper  leading  to  that  jury-room  is  used  for  all  public  purposes, 
is  it  not  ? — A,  It  is. 

Q.  When  not  so  used,  is  it  not  kept  locked  ? — A.  It  is. 

Q.  Has  it  not  been  frequently  used  for  public  purposes  since  the  last  election  and 
since  those  boxes  were  deposited  in  the  jury-room  ? — A.  Yes,  sir. 

Q.  When  the  coiu-t-room  is  used  by  the  public,  have  they  not  also  access  to  the 
jury-room  where  the  boxes  were  ? — A.  They  have. 

Q.  Were  those  boxes  kept  locked,  and  is  there  any  law  requiring  j'ou  to  keep  them 
locked  f — A.  They  were  not  kept  locked,  and  there  is  no  law  requiring  them  to  be 
kept  locked. 

Q.  Might  they  not,  when  returned,  contained  the  papers  for  which  contestant  yes- 
terday searched,  and  all  other  papers  which  the  law  requires  them  to  contain,  and 
have  been  lost  since  ? — A.  They  might. 

We  think  the  above  evidence  conclusively  establishes  that  no  con- 
fidence can  be  placed  in  any  so-called  returns  from  Darlington  pre- 
cinct. 

Brown  testifies  that  he  prepared  the  statement  (Record,  p.  736) 
which  purports  to  have  been  certified  to  by  the  clerk.  Garner,  but  which 
lie  testifies  he  did  not  certify  to.  The  ballot-boxes  and  their  contents 
had  been  open  to  the  access  of  any  who  chose  to  go  and  examine  them, 
as  the  witness  Brown  did.  Whether  they  had  been  tami^ered  with  or 
not  no  one  testifies  and  no  one  can.  How  the  vote  stood  for  member 
of  Congress  at  Darlington  precinct  the  secretary  of  state  does  not 
know,  for  he  certifies  that  no  separate  return  of  the  vote  of  that  precinct 
ever  came  to  his  hands. 

Garner,  the  clerk,  as  we  have  seen,  swears  he  does  not  know. 

McCall,  as  we  have  seen,  also  swears  that  he  does  not  know;  and  C. 
S.  McCullough,  who  swears  he  was  chairman  of  the  board  of  managers, 
testifies  (Record,  p.  527) : 

Q.  What  was  the  number  of  votes  cast  for  member  of  Congress  at  this  poll? — A. 
I  do  vot  remember. 

And  Philip  Lewenthal,  who  swears  that  he  was  clerk  of  the  board 
of  managers  at  Darlington  poll  (pp.  546  and  547)  testifies  that  he  does 
not  know.  In  the  entire  record  no  witness  swears  how  the  actual  vote 
stood  at  Darlington  poll.  This  is  one  of  the  precincts  especiallj'  attacked 
by  Mr.  Lee. 


LEE    VS.    RICHARDSON.  549 

A  vast  mass  of  testimony  was  taken  by  both  parties  touching  this 
poll.  From  the  evidence  in  the  record  it  is  not  i)ossible  to  ascertain 
the  true  result. 

The  rule  as  laid  down  by  McCrary  (sec.  437)  we  think  should  be  ap- 
plied to  this  case,  and  is  as  follows  : 

Where  the  true  vote  canuot  be  ascertained,  either  from  the  returns  or  from  evidence 
aliunde,  the  vote  of  the  precinct  is  to  be  rejected. 

But  it  is  very  evident  from  the  testimony  that  intense  excitement 
prevailed  at  Darlington  on  the  day  of  the  election.  The  polls  were  held 
at  a  different  place  than  the  usual  one. 

The  witness  McCall,  a  county  commissioner  of  election  (Kecord,  p. 
Ill),  admits  that  the  place  was  less  convenient.  It  was  up  in  the  sec- 
ond storj-  of  the  court-house,  15  feet  above  the  ground,  with  two  stair- 
ways leading  up  to  the  ballot-box. 

It  appears  from  all  the  testimony  that  the  Democrats,  dressed  in  red 
shirts  and  caps,  took  possession  of  the  polls  from  the  outset. 

J.  A.  Smith  (Record,  p.  106),  states  that  from  700  to  800  Republicans 
were  prevented  from  casting  their  votes  by  reason  of  intimidation.  He 
says : 

I  made  three  attempts  to  reach  the  ballot-box — ^myself  and  others;  I  found  it  im- 
possible to  do  so  without  a  collision  -with  the  Democrats  and  red-shirts,  who  had  the 
steps  packed  from  bottom  to  top. 

Aimwell  Western,  jr.  (Record,  p.  92),  states  that  from  800  to  1,000 
Republicans  left  the  polls  without  voting.  He  also  states  that  on  the 
night  before  the  election  two  wagons  loaded  wit*h  guns  came  on  the 
back  street  and  they  were  carried  down  the  street  next  to  the  court- 
house. A  portion  was  placed  in  a  store  of  one  Early  and  "  some  were 
put  in  the  court-house  where  the  ballot-box  was." 

On  Record,  page  94,  he  gives  the  names  of  the  men  who  unloaded 
those  wagons :  Moses  Bishop,  Sam  Hinds,  Rosser  Hart,  and  Charlie 
Bishop.  He  states  that  Moses  Bishop  and  Sam  Hinds  carried  a  portion 
of  those  guns  upstairs  where  the  ballot-box  was.  It  appears  from  his 
testimony  that  guns  were  brought  on  the  train  about  12  o'clock  at  night, 
which  train  neither  blew  a  whistle  nor  rung  a  bell.  The  guns  were  tied 
up  in  blankets  in  large  bales. 

Xone  of  the  persons  who  handled  the  guns  were  called  as  witnesses 
to  deny  the  statement.  A  great  many  witnesses  were  called  by  Mr. 
Richardson  who  did  not  see  any  guns  and  did  not  see  any  intimidation. 

Aimwell  Weston,  sr.,  swears  as  follows,  among  other  things : 

Q,  Did  you  vote  there  ? — A.  I  could  not  vote  there. 

Q.  Why  could  you  not  vote?— A.  There  was  bulldozing,  pushing,  pulling,  and 
blockading  the  steps.  Some  of  them  had  knives  drawn ;  looked  Uke  they  were 
drunk. 

He  also  testifies  they  had  red  shirts  on.     (Record,  p.  116.) 

Edward  Williams,  on  same  page,  testifies  to  the  same  effect. 

Simeon  Saunders  (Record,  p.  117)  saw  men  attempt  to  go  up  those 
steps  and  saw  them  tumble  back;  they  were  pushed  back  by  the  Dem- 
ocratic crowd  upon  the  steps. 

Thomas  Myers  (Record,  p.  105)  testified : 

Q.  What  poll  did  you  attend  ? — A.  Darlington  poll. 
Q.  Did  you  vote  t — A.  I  did  not. 

Q.  Why  did  you  not?— A.  They  would  not  let  me. 
Q.  Who  woiild  not  let  vou  ?— A.  The  Democratic  party. 

Q.  How  did  they  prevent  you  ?— A.  I  started  up  the  steps,  and  they  told  me  I  should 
not  go  up. 


X.50  DIGEST  OF  ELECTION  CASES. 

<5.  What  did  they  do  to  prevent  you  from  voting  ? — A.  They  pulled  me  back.  I 
attempted  to  go  up  twice,  and  they  pulled  me  back  by  my  coat. 

Koah  Burch  testifies  (Eecord,  p.  105)  that  he  tried  to  vote ;  that  the 
«teps  were  fall  from  bottom  to  top  with  white  men;  that  they  shoved 
iiim  dowu  and  told  him  he  could  not  vote ;  that  he  tried  again,  and 
was  again  shoved  back  by  the  Democratic  crowd  on  the  steps. 

Simon  Scott  (Record,  p.  136)  testifies  that  a  crowd  of  Democrats 
<lressed  in  red  shirts  prevented  him  from  voting.    He  says : 

I  went  up  to  the  st^ps  of  the  court-house,  and  they  said,  You  cannot  vote  here  unless 
you  vote  a  Democratic  ticket. 

Burrell  Mclver  (Eecord,  p.  355)  testifies  that  he  did  not  vote — 

Because  the  court-house  steps  were  so  crowded  with  Democrats  that  I  could  not 
Breach  the  ballot-box  to  cast  my  ballot.     They  would  not  let  me  go  up  the  steps. 

Q.  Did  you  see  any  men  with  guns,  and  to  what  political  party  did  they  belong  ? — 
Ji.  The  Democratic  ;  I  saw  no  arms  but  theirs. 

Q.  Where  were  these  men  with  their  guns! — A.  In  a  store  in  front  of  the  court- 
Iiouse. 

Peter  Whit«  (Record,  p.  384)  testifies  as  follows : 

<^.  Did  you  vote  ? — A.  No,  sir, 

Q,  Why  not  ? — A.  Because  I  was  prevented  by  the  Democratic  party.  The  ballot- 
l)ox  was  in  the  court-house,  and  I  tried  to  go  up  the  steps  and  they  would  not  let  me 
go  up ;  saw  one  man  trying  to  climb  up  on  the  outside  of  the  steps,  and  when  he  got 
aip  his  handhold  was  broken  loose  and  he  fell  to  the  ground  and  was  hurt. 

Cross-examined  by  C.  D.  Evans: 

Q.  What  time  did  you  (each  the  Darlington  poll  that  day? — A.  About  a  quarter  of 
iin  hour  after  sunrise. 

Q.  When  did  you  leave? — A.  About  2  p.  m.,  I  guess. 

Q.  Did  you  hear  Jack  Smith's  order  for  all  Republicans  to  go  home,  and  at  what 
iime  did  you  hear  it? — A.  I  heard  it  about  11  a.  m. 

Q.  You  say  it  was  impossible  for  you  to  vote  from  the  time  you  reached  Darlington 
aintil  you  went  away  ? — A.  It  was  really  impossible.  I  was  very  determined,  and  I 
«aw  no  chance  without  getting  hurt  or  being  killed. 

Alonzo  Lewis  sworn  (Record,  p.  378) : 

"Question.  State  your  name,  age,  residence,  and  occupation. — Answer.  Name,  Alonzo 
Ijcwis  ;  23  years  old;  residence,  Darlington  County;  occupation,  butler. 

Q.  Were  you  at  the  Darlington  polliug  precinct  on  the  day  of  the  last  election — A. 
Yes,  sir. 

Q.  Did  you  vote  ? — A.  No,  sir. 

Q.  Why  not  ? — A.  Because  I  couldn't  get  to  the  polls ;  the  red-shirt  Democrats  pre- 
vented me  from  getting  to  the  polls ;  they  were  standing  on  the  steps  leading  up  to 
the  box.  I  attempted  to  go  up,  and  they  said,  "  No  radicals  in  hei-e;  no  radicals  in 
Iiere,"  and  all  caught  arms  together  and  shoved  mo  back. 

Q.  Who  did  you  intend  voting  for  for  Congress? — ^A.  Samuel  Lee. 

The  above  are  given  as  specimens,  taken  almost  at  random  from  the 
printed  testimony. 

The  depositions  of  240  witnesses  appear  in  the  Record,  who  swear  they 
were  present  at  the  Darlington  poll  and  desired  to  vote  for  Mr.  Lee,  but 
were  prevented  from  so  doing  by  threats  or  intimidation.  Convinced 
they  could  not  vote  without  danger  of  riot  and  bloodshed,  hundreds 
w^ithdrew  from  the  poll.  There  is  counter-testimony  in  the  Record,  but 
it  is  from  the  very  parties  complained  of,  and  from  comparatively  few 
other  witnesses. 

Your  committee  are  compelled  to  say,  from  all  the  evidence,  that  the 
«a8e  of  Darlington  poll  falls  within  the  principle  laid  down  by  McCrary, 
AS  follows : 

Sec.  416.  The  triie  rule  is  this :  The  violence  or  intimidation  should  be  shown  to 
ihave  been  sufficient  either  to  change  the  result  or  that  by  reason  of  it  the  true  result 
<:aunot  be  ascertained  with  certaiutv  from  the  returns.    To  vacate  an  election  on  this 


LEE   VS.    RICHARDSON.  551 

ground,  if  the  election  were  not  in  fact  arrested,  it  must  clearly  appear  that  there 
was  such  a  display  of  force  as  ought  to  have  iutimidated  men  of  ordinary  firmness. 

Here  it  is  proper  to  remark  that  up  to  1878  Darlington  precinct  al- 
ways was  largely  Republican. 

A  few  years  ago  the  Republicans  used  to  poll  1,200  to  1,300  votes  at 
that  poll.  See  testimony  of  John  G.  Gatlin  (Record,  p.  79),  John  Lun- 
ney  (Record,  p.  81),  Jordan  Lang  (Record,  p.  95). 

At  the  election  in  1880  Mr.  Richardson  is  credited  by  the  schedule, 
which  purports  to  be  certified  to  by  the  clerk,  Garner,  but  which  he  tes- 
tifies he  did  not  certify,  as  having  received  1,271  votes  to  117  votes  for 
Mr.  Lee ;  and  from  the  impossibility  of  ascertaining  how  the  actual 
vote  stood  at  Darlington  poll,  by  the  disregard  on  the  part  of  the  county 
commissioners  to  forward  the  returns  and  poll-list  to  the  secretary  of 
state,  in  violation  of  a  plain  provision  of  law,  and  from  the  fact  that  in- 
timidation and  violence  prevented  hundreds  from  voting,  your  commit- 
tee reject  Darlington  poll  from  the  count. 

Lydia  Precinct. 

All  the  managers  at  this  poll  were  Democrats. 

As  we  have  seen,  no  possible  reliance  can  be  placed  on  the  statement 
in  the  schedule  purporting  to  be  certified  by  the  clerk.  Garner  (Record, 
p.  571),  since  he  swears  he  did  not  certify  it.  We  therefore  rely  upon 
the  report,  sworn  to  and  put  in  evidence,  of  the  two  United  States 
supervisors  (Record,  p.  113),  by  which  it  aj)pears  that  Richardson  re- 
ceived 572  votes  and  Lee  193  votes. 

An  excess  of  163  votes  was  found  in  the  box,  showing  the  box  was 
stuffed.  As  the  election  seems  to  have  been  fairly  conducted  after  the 
arrival  of  the  supervisor,  Robinson,  which  was  just  after  the  polls  were 
opened,  we  conclude  the  box  was  stuffed  in  the  beginning,  and  by  the 
managers.  But  since  the  excess  was  drawn  from  the  box,  and  seems  to 
have  been  fairly  withdrawn  in  proportion  to  the  vote  of  each  candidate 
for  Congress,  we  think  that  both  Lee  and  Richardson  should  each  be 
credited  by  the  number  of  votes  which  were  counted  for  them,  as  shown 
by  the  report  of  the  two  supervisors,  viz,  Richardson  572  votes,  Lee  193 ; 
majority  for  Richardson  of  379. 

Society  Hill  Precinct. 

For  the  same  reasons  as  above  stated,  no  reliance  can  be  placed  on 
the  clerk's  schedule,  which  the  clerk  himself  rejects,  as  to  what  was  the 
true  vote  at  this  precinct.  But  on  page  363  of  the  Record  we  have  the 
report  of  Z.  W.  Wines  and  E.  P.  Cannon,  the  two  supervisors,  which 
Wines,  as  a  witness  (Record,  p.  338),  testifies  gives  a  true  account  of  the 
poll  when  the  box  was  opened  and  the  votes  counted. 

By  it  it  appears  that  the  poll-list  kept  by  the  managers  and  those 
kept  by  each  of  the  supervisors  all  showed  that  535  votes  were  cast. 
Extra  ballots  were  found  in  the  box. 

The  box  had  been  stuffed.  John  T.  Prince,  one  of  the  managers, 
swears  (Record,  p.  565)  that  58  ballots  in  excess  were  found  in  the 
box.  The  managers  and  clerks  were  all  Democrats.  The  excess  of 
ballots  was  drawn  out  and  destroyed,  of  which  12  had  Richardson's 
name  on  them. 

If  the  ballots  destroyed  had  been  the  exact  fraudulent  ballots  put  in 
the  box  this  would  have  been  precisely  just.  But  this  could  scarcely 
be. 


552  DIGEST  OF  ELECTION  CASES. 

It  is  not  right  that  all  the  managers,  in  all  the  precincts  of  a  county, 
should  be  the  partisans  of  one  candidate. 

It  is  not  just  that  ballots  should  be  honestly  voted  and  then  with- 
drawn and  destroyed  because  other  fraudulent  ballots  had  been  stuffed 
into  the  box. 

Happily,  we  have  the  means  to  determine  how  many  honest  votes  each 
candidate  for  Congress  received  at  this  poll.  In  the  Record,  page  118, 
is  found  a  list  of  383  names  kept  by  H.  D.  Kershaw  and  R.  E.  Postell, 
all  of  whom,  they  swear,  voted  for  Mr.  Lee.  They  saw  them  cast  their 
votes.  (Record,  pp.  118  and  339.)  Since  12  of  the  58  votes  drawn  out 
were  for  Richardson  the  other  46  must  have  been  for  Lee ;  and  adding 
these  46  votes  to  the  337  counted  for  Lee  we  have  383  votes,  which  ex- 
actly corresponds  with  the  list  of  383  names  of  voters,  who  Kershaw  and 
Postell  testify  voted  for  Lee.  We  therefore  accord  to  Lee  383  votes  and 
to  Richardson  152  votes,  making  a  total  of  535  votes,  the  number  of  votes 
cast  at  this  poll. 

Lisbon  Precinct. 

This  poll  is  in  like  strait  as  the  preceding.  We,  however,  find  on  page 
238  of  Record  the  report  of  the  two  United  States  supervisors,  H.  C. 
HarroU  and  J.  H.  Huggins.  This  report  Harroll,  as  a  witness,  on  page 
194,  testifies  is  correct.  By  it  we  see  that  493  names  were  on  the  poll- 
list,  and  the  managers  counted  for  Richardson  317  votes  and  for  Lee  176 
votes. 

This  box  had  been  stuffed  with  98  fraudulent  ballots.  All  the  man- 
agers were  Democrats.  Ninety-eight  ballots  were  withdrawn  and  de- 
stroyed, of  which  39  were  for  Lee  and  59  for  Richardson.  (Record. 
p.  238.) 

If  this  was  a  Democratic  fraud,  then  Lee  was  deprived  of  39  v^otes, 
and  Richardson  gained  that  many.  That  it  was  a  Democratic  fraud  is 
manifest  when  we  see  that  W.  R.  Dukes  (Record,  p.  201)  testifies  he 
was  present  and  kept  a  list  and  saw  215  persons  vote  for  Lee.  He 
furnishes  that  list  of  names.  (Record,  p.  223.)  There  is  no  witness 
called  to  deny  this.  And  when  we  add  39  Lee  ballots,  withdrawn  from 
the  box,  to  the  176  which  the  managers  counted  for  him  it  amounts  to 
exactly  215.  But  subtracting  215  Lee's  votes  from  the  whole  vote  of 
493  and  it  leaves  278  as  Richardson's  true  vote. 

Timmonsville  Precinct. 

By  the  report  of  the  supervisor  (Record,  pp.  68  and  69)  608  votes 
were  counted  for  Representative  in  Congress.  The  managers  counted 
533  votes  for  Richardson  and  75  for  Lee.  It  was  from  Timmonsville 
that  75  or  more  Democrats,  having  voted  there,  went  to  Florence  poU 
and  again  voted.  The  ballot-box  was  stuffed  at  Timmonsville,  and  the 
excess  drawn  out  and  destroyed.  Rafra,  the  supervisor,  swears  to  his 
report.  (Record,  p.  84.)  The  managers  and  clerk  were  all  Democrats. 
J.  E.  Keeler  testifies  (Record,  p.  373)  that  he  kept  a  list  of  the  Repub- 
licans; that  they  voted  Republican  tickets,  and  for  Samuel  Lee  for  Con- 
gress.    The  list  is  found  (Record,  p.  376)  showing  199  names. 

The  contestee  has  not  shown  that  a  single  one  of  these  109  did  not 
vote  for  Mr.  Lee.  We  correct  this  precinct  by  giving  to  Mr.  Lee  199 
votes  and  subtracting  that  number  from  the  whole  vote,  608,  gives  409 
as  Mr.  Richardson's  true  vote. 


LEE    VS.    RICHARDSON. 
Leavemcorth  Precinct. 


553 


By  the  report  of  F.  W.  Prince,  United  States  supervisor,  made  an 
exhibit  to  his  deposition  (Eecord,  p.  98),  it  appears  that  the  names 
on  the  poll-list  kept  by  the  managers  of  election  were  594.  That  239 
fraudulent  ballots  in  excess  were  found  in  the  box.  As  usual  the  box 
had  been  stuffed ;  239  ballots  were  withdrawn  and  destroyed  by  the 
Democratic  managers — 110  Eepublican  and  129  Democratic.  W.  H, 
Waddell  testified  (Eecord,  p.  99)  that  he  kept  a  list  of  the  Republican 
votes  j  that  he  saw  the  names  of  the  candidates  on  the  tickets,  and 
that  they  all  voted  for  Samuel  Lee. 

The  list  foots  up  308  names.  As  this  list  is  undisputed  by  any  wit- 
ness, we  accord  to  Mr.  Lee  308  votes  at  this  precinct,  and  the  balance 
of  the  594  we  count  for  Mr.  Eichardson,  to  wit,  286  votes. 

Correcting  the  vote  at  the  precincts  above  set  forth,  as  we  have,  and 
leaving  untouched  the  other  precincts  of  Darlington  County,  and 
counting  them  as  claimed  by  Mr.  Eichardson,  and  the  result  is  as  fol- 
lows: 

Vote  of  Darlington  County. 


Precincts.                             ' 

As  found  by  the  committee. 

Eichardson. 

Lee. 

286 
195 
572 
31 
409 
143 
142 
278 
152 

308 

Carteraville 

69 

L  vflia 

193 

if  echanicsville 

349 

Timmonsville 

199 

Gum  Branch 

29 

Effingham 

95 

Lisbon , 

215 

Society  Hill 

383 

HartsviUe 

187 

44 

Florence .  . 

2,395 

1,884 

Bichaxdson's  majority 

511 

We  find  for  Mr.  Eichardson,  in  Darlington  County,  a  majority  of  511 
votes,  in  place  of  2,554  votes,  as  given  to  him  by  the  returns  of  the 
State  board  of  canvassers. 


MARLBOROEOUGH   COUNTY. 

Bennettsville  Precinct. 

The  secretary  of  state  certifies  (Eecord,  p.  226)  that  Lee  received  464 
votes  and  Eichardson  335.  An  excess  of  61  votes  was  found  in  the 
ballot-box.  That  number  of  ballots  were  withdrawn  and  destroyed,  60 
being  Lee's  votes  and  only  1  a  Eichardson  ballot.  (D.  D.  McColl,  United 
States  supervisor,  Eecord,  p.  253.)  How  this  strange  result  happened 
McColl  in  his  testimony  explains.  The  tickets  were  easily  distin- 
guished by  feeling. 

AVhen  box  was  opened  at  close  of  polls  there  were  sixty-one  more  votes  in  box  than 
names  on  poll-list  of  clerk  of  managers,  and  in  drawing  ont,  the  clerk  who  did  the 
drawing  wonld  carefully  feel  the  ballots,  and  tiirn  loose  a  Democratic  ballot  if  he 
found  on  feeling  that  it  was  such,  and  continue  to  feel  until  he  would  bring  out  a 


554  DIGEST    OF    ELECTION    CASES. 

Republican  ticket.    The  second  ticket  drawn  from  box  teas  only  mistake  he  made,  this 
one  being  a  Democratic  ticket ;  the  other  sixty  so  drawn  out  being  Republican. 

Weatherby,  a  Democratic  manager,  testifies  as  follows  (Record,  p. 
652): 

Q.  Could  he  simply  by  the  touch  distinguish  the  tickets  ? — A.  Yes,  I  think  so ;  un- 
less they  were  pasted  together ;  one  was  heavier  than  the  other. 

He  also  swears  the  clerk  seemed  to  be  in  no  hurry. 

Now,  adding  60  votes  to  the  464  counted  for  Lee  and  we  have  a  total 
of  524  as  Lee's  true  vote,  if  all  the  Republicans  voted  for  him;  but  Mc- 
Coll  swears  that  511  did  vote  for  him,  whose  names  he  gives  (Record, 
p.  274),  and  Mr.  Lee  proves  by  five  other  witnesses,  whose  names  were 
not  on  McCoU's  list,  that  they  also  voted  for  him.  (See  Record,  pp. 
255,  259,  260,  263,  and  273.) 

We  therefore  count  for  Lee  516  votes,  and  give  the  balance,  283,  for 
Richardson. 

Bed  mil. 

The  secretary  of  state  returns  for  contestant  182  votes,  and  for  con- 
testee  353  votes,  but  it  appears  by  the  testimony'  of  J.  W.  Jenkins 
(Record,  p.  270)  that  the  ballot-box  was  stuffed.  Jenkins  was  United 
States  supervisor.  He  swears  to  the  report  found  on  page  290  of  Rec- 
ord, that  there  was  an  excess  of  ballots  in  the  box  over  poll-list  of  25. 
All  the  managers  were  Democrats.  In  withdrawing  this  excess,  24  bal- 
lots bore  the  names  of  the  Republican  candidates  and  1  of  the  Demo- 
cratic candidates. 

William  A.  Rogers,  an  Independent,  swears  (Record,  p.  269)  that  the 
colored  voters  all  approached  the  polls  by  the  back  door — 

And  as  one  approached  the  door  and  made  it  known  that  he  wanted  to  vote  the 
ticket  prepared  by  the  Republican  party,  I  would  fold  the  ticket  and  hand  it  to  him. 
I  did  this  so  they  should  not  be  charged  with  voting  double  tickets.  (Record,  p. 
269.) 

And  one  of  the  Democratic  managers,  W.  B.  Alford,  a  witness  for 
contestee  (Record,  p.  663),  thinks  there  was  an  excess  of  about  24.  On 
cross-examination,  he  testifies  as  follows : 

Q.  Can  you  account  for  how  24  ballots  were  in  excess  of  the  names  on  the  poll-list? 
— A.  Only  in  this  way,  by  finding  two  ballots  folded  together ;  from  apjiearance  they 
were  supposed  to  be  put  in  together  when  voted. 

Q.  When  two  or  more  ballots  were  found  folded  together,  were  not  all  destroyed 
save  one  f — A.  I  don't  recollect  about  that,  but  I  think  they  were  returned  to  the.box 
and  the  excess  drawn  out. 

Q.  Then  the  managers  did  not  observe  the  law  in  that  particular,  did  they  ? — A.  I 
do  not  remember  the  particulars  in  that  regard ;  I  paid  more  attention  toward  the 
ballot-box  than  anything  else. 

Since  all  the  officers  conducting  the  election  were  Democrats,  since 
pains  were  taken  to  prevent  the  Republicans  being  charged  with  double 
voting,  and  since  the  excess  of  votes  must  have  been  a  Democratic  fraud, 
from  the  evidence,  and  because  it  clearly  appears  that  at  least  24  honest 
votes  were  withdrawn,  and  that  at  least  23  if  not  24  were  Republican 
tickets,  we  correct  this  poll  by  adding  23  votes  to  contestant's  returned 
vote  of  182,  because  23  of  his  honest  ballots  were  withdrawn  from  the 
box,  and  we  deduct  23  votes  from  the  353  votes  counted  for  Richardson, 
because  23  fraudulent  ballots  were  counted  for  him.  So  correcting  the 
vote  and  the  result  is :  For  Richardson,  330;  and  for  Lee,  205. 


LEE    VS.    RICHARDSON.  '  555 

Broicnsville  Precinct. 

At  this  precinct,  by  the  secretary's  report,  Lee  received  90  votes  and 
Bichardson  290,  but  it  appears  by  the  report  of  the  two  United  States 
supervisors,  Moses  W.  Pearson  and  W.  B.  Drake,  put  in  evidence  and 
found  on  page  242  of  Record  that  this  ballot-box  was  stuffed  by  129  bal- 
lots over  the  jriames  on  the  poll-list;  to  reduce  the  number  of  ballots 
to  correspond  with  the  names  on  the  poll-list  129  ballots  were  withdrawn 
by  the  managers,  and  the  strange  disparity  occurred  here  as  elsewhere 
in  withdrawing  the  excess.  The  managers  were  all  Democrats.  They 
ought  to  have  guarded  the  box  with  zealous  care.  They  withdrew  116 
ballots  which  bore  the  name  of  the  Republican  candidate  and  only  13 
Democratic  ballots.  It  was  a  repetition  of  what  we  have  already  seen 
occurred  again  and  again.  We  correct  this  poll  by  adding  116  to  the 
90  votes  counted  for  Samuel  Lee,  making  a  total  of  206  for  Lee ;  and 
deducting  116  from  the  290  which  the  managers  counted  for  Richardson, 
which  leaves  him  174  votes.  Lee  honestly  received  206  votes  and  Rich- 
ardson 174  at  this  poll. 

Hebron  Precinct. 

At  this  precinct  the  secretary  returns  for  Lee  106,  for  Richardson 
245 ;  total  351.  There  was  an  excess  of  ballots  in  the  box  of  43  over 
and  above  the  names  on  the  poll-list.  See  testimony  of  B.  F.  Hamer, 
United  States  supervisor  (Record,  i).  258),  his  report  (Record,  p.  282). 

All  the  election  officers  were  Democrats.  This  box  had  also  been 
stuffed;  43  ballots  were  withdrawn  and  destroyed.  How  many  Lee 
ballots  were  withdrawn  the  Record  failed  to  show,  but  Ennis  Campbell 
(Record,  263)  and  Crawford  Tournage  swear  about  30  Lee  ballots  were 
withdrawn  and  destroyed.  Tournage  further  swears  that  he  saw  145 
Republican  votes  cast.  Adam  Cook  (Record,  p.  259)  testifies  that 
he  made  a  list  of  145  names  of  those  who  voted  the  Republican  ticket ; 
he  furnishes  that  list  in  Record,  p.  283. 

In  this  he  is  corroborated  by  Gibson  Townsend  (Record,  p.  260),  who 
testifies  he  was  acquainted  with  most  of  those  voters.  As  none  of  the 
witnesses  called  by  contestee  deny  the  above  statement,  we  think  it 
clear  that  Lee  received  145  votes  at  this  poll.  We  accord  him  that  num- 
ber, and  the  balance  to  Richardson,  which  gives  for  Lee  145  and  for 
Richardson  206  votes. 

Stnithville  precinct. 

By  the  secretary's  table  Lee  received  229  votes  and  Richardson  233 
votes. 

At  this  i)oll,  as  usual,  all  the  managers  were  Democrats,  and  the  bal- 
lot-box was  stuffed. 

H.  S.  Grant,  United  States  supervisor,  testifies  (Record,  p.  256) 
there  were  81  more  ballots  in  the  box  than  there  were  names  on  the  poll- 
list.  That  number  was  drawn  out  and  burned.  Sixty-four  of  them  bore 
the  name  of  Samuel  Lee  for  Congress.     (Record,  pp.  256  and  282.) 

H.  E.  Johnson,  a  white  man,  and  an  Independent  Democrat,  testifies 
(Record,  p.  267)  that  Lee's  name  was  on  all  the  Republican  tickets 
drawn  out. 

William  Pagues,  a  Democratic  manager,  drew  out  the  ballots.    John 
son  swears  (Record,  p.  267) : 

I  told  him  that  in  the  mauuer  in  which  he  was  drawing  out  these  ballots  I  pro- 


556 


DIGEST    OF    ELECTION    CASES. 


nounced  him  a  perjured  man,  aud  told  him  I  intended  to  indict  him  in  the  United 
States  court. 

The  reason  given  was  because  he  evidently  hunted  for  Kepublican 
tickets. 

It  was  80  evident  that  I  coviplained  of  it.     (Record,  267.) 

On  page  266  he  testifies  to  having  detected  one  Williams  in  the  act 
of  voting  two  Democratic  tickets  at  once. 

The  vote  at  this  poll  is  proved  and  sustained  by  a  list  kept  aud  fur- 
nished by  witness  Benjamin  Quick  (Eecord,  p.  292),  whereby  it  ap- 
pears the  names  of  295  voters  are  given  who  voted  the  Eepublican 
ticket.  As  this  testimony  is  not  rebutted,  we  count,  therefore,  at  this 
precinct  for  Lee  295  votes  aud  for  Eichardson  167  votes. 

We  summarize  the  vote  of  this  county  by  precincts  as  follows : 

Vote  of  Marlborough  County. 


Precincts. 

As  returned  by  the 
state  canvassers. 

As  corrected  by  th^ 
committee. 

Sichardson.      Lee. 

Eichardson.      Lee. 

335 
353 
331 
290 
214 
187 
245 
233 
237 

464 

182 
80 
90 
59 
65 
106 
229 
181 

283 

516 

Bed  Hill  

330 
331 
174 
214 

205 

80 

206 

Clio 

.>>» 

Red  Bluff 

187              65 

206             145 

167            295 

237             181 

Kichardson's  mt^jority 

2,425 

1,456 

2,129 
377 

1,752 

The  above  table  shows  Eichardson's  majority  in  this  county  to  be 
377,  in  place  of  969,  as  allowed  him  by  the  State  board  of  canvassers. 


MAEION   COUNTY. 

Marion  Court-House  Precinct. 

At  this  ballot-box,  as  at  every  one  in  the  county,  all  the  managers 
were  Democrats.  B.  A.  Thompson  (Eecord,  p.  425)  testifies  that  he 
was  one  of  the  county  commissioners  of  election  for  Marion  County  j 
that  he  demanded  of  the  board  the  appointment  of  a  Eepublican  man- 
ager at  each  precinct,  but  this  was  not  complied  with,  and  the  majority 
of  the  board  appointed  none  but  Democrats. 

At  the  Court-House  precinct  the  managers  reported  522  votes  for  Mr. 
Lee  and  574  votes  for  Mr.  Eichardson.  As  seems  to  be  the  rule,  this 
ballot-box  was  stuffed.  E.  B.  MuUins,  one  of  the  managers  (Eecord, 
pp.  632  and  633),  testifies:  "There  was  an  excess  of  about  60  ballots 
in  the  box  over  the  names  on  the  poll-list." 

J.  H.  Holloway,  a  Eepublican,  testifies  (Eecord,  p.  411)  that  56  Ee- 
publican votes  were  thrown  out  at  this  precinct.  E.  J.  Blackwell, 
another  Democratic  manager,  testifies  (Record,  p.  637)  that  there  was 
an  excess  over  the  poll-list  of  about  50  votes.  E.  J.  Crawford,  United 
States  supervisor,  whose  report  is  put  in  evidence  on  page  247  of  Eec- 
ord, states  that  the  excess  was  55  votes,  and  of  the  55  ballots  withdrawn 


LEE    VS.    RICHARDSON.  557 

aud  destroyed  54  bore  the  names  of  the  Kepublican  candidates,  and 
"one  doubtful  whether  Democratic  or  Kepublican." 

There  seems  to  be  no  essential  controversy,  and  your  committee  count 
54  votes  as  having-  been  withdrawn  from  Mr.  Lee's  honest  vote.  They 
accordingly  add  54  votes  to  the  number  counted  for  Mr.  Lee,  and  de- 
duct that  number  from  the  574  votes  counted,  but  not  cast,  for  Mr. 
Kichardson.  This  would  give  as  the  true  result  at  this  poll  for  Lee  576 
votes  and  for  Richardson  520  votes. 

Berry^s  Cross-Boads  Precinct. 

At  this  precinct  the  secretary  of  state  reports  that  Eichardson  re- 
ceived 372  votes,  and  Lee  received  168. 

The  managers  were  all  Democrats. 

This  poll  was  no  exception  to  the  fact  of  ballot-box  stufl&ng.  All  the 
witnesses  interrogated  admit  this.  Gregg  C.  Crawford  (Record,  p. 
427)  testifies  that  the  poll -list  called  for  541  votes ;  that  637  ballots  were 
found  in  the  box,  and  he  testifies : 

Joe  Jarnegan  put  liis  baud  iuto  the  box  ninety-six  times,  and  took  out  the  excess 
votes.  All  he  took  out  were  Republican.  They  put  them  into  the  fire-place  aud  burnt 
them. 

B.  F.  Crawford,  United  States  supervisor,  whose  report  is  in  evidence 
(Record,  p.  248),  states  that  96  ballots  were  withdrawn — 93  Repub- 
lican and  3  Democratic.  The  Republican  tickets  were  thick  like  unto 
a  card,  and  the  Democratic  ticket  was  a  little  thin  ticket.  (Record, 
p.  427).  Since  it  is  evident,  from  the  testimony,  that  the  ballot-box 
was  stuffed — that  96  fraudulent  ballots  were  found  therein,  and  that  93* 
were  at  least  Republican,  and  only  3  Democratic — it  is  manifest  this 
fraud  was  a  Democratic  one.  The  disparity  in  drawing  out  wa«  enor- 
mous. 

We  correct  this  poll  by  adding  93  to  the  number  which  the  managers 
count  for  Lee,  and  deduct  a  like  number  from  the  vote  counted  for 
Richardson.    This  gives  261  to  Lee,  and  279  to  Richardson. 

CampbelVs  Bridge  Precinct. 

The  secretary  of  state  gives  Richardson  284  votes  and  Lee  111  votes 
at  this  poll.  The  number  of  names  on  the  poll-list  was  395.  (Record, 
p.  432).  This  ballot-box  was  also  stuffed.  The  managers  here  were 
all  Democrats ;  31  extra  ballots  were  found  in  the  box.  The  total  Re- 
publican vote  found  in  the  box  was  141.  (Brownhamer,  Record,  p. 
431.)  In  this  he  is  corroborated  by  the  deposition  of  D.  P.  Murphy,  the 
United  States  supervisor.  (Record,  pp.  432  and  461.)  How  they  were 
withdrawn  is  manifest  from  the  testimony  of  Brownhamer.  (Record,  p. 
431.)     He  testifies  that  the  manager — 

Was  not  blindfolded:  jnst  turned  himself  onesided  and  put  his  hand  in  the  box  and 
felt  in  there,  and  would  take  out  a  Republican  ticket  and  hand  it  to  John  Henry,  say- 
ing he  was  working  for  his  country. 

Witness  adds : 

I  could  take  every  Republican  ticket  out  of  that  box  if  I  waa  blind  as  a  bat ;  one 
was  soft  aud  thin,  the  other  thick  aud  stift". 

D.  P.  Muri)hy  (Record,  p.  432)  testifies : 

He  turned  his  side  to  the  table  and  drew  them  out  very  carefully,  taking  his  time 
AS  if  he  was  separating  the  Democratic  tickets  from  the  Republican  ticket-s. 

He  further  states  that  the  Republican  ticket  was  very  thick,  and  the 


558  DIGEST    OF   ELECTION    CASES. 

Democratic  tickets  were  very  thiu.  lu  bis  report,  to  which  he  swears, 
30  of  the  ballots  drawn  out  bore  the  names  of  the  Republican  candi- 
dates, and  one  of  the  Democratic  candidates.  Edwin  Bethea,  witness 
for  the  contestee  (Record,  p.  624),  states  that  he  drew  the  tickets  out 
of  the  box.    He  testifies : 

I  think  I  can  tell  a  Democratic  ticket  from  a  Republican  ticket.  The  Eepnblican 
ticket  was  abont  one  and  a  half  inches  shorter  than  the  Democratic,  a  half  inch 
wider,  and  two  or  three  times  as  thick. 

G.  J.  Bethea  states  (Record,  p.  628)  that  the  excess  was  31  votes ; 
that — 

Edwin  Bethea  was  not  blindfolded  in  drawing  out  the  ballots;  that  the  Republican 
ticket  was  thicker  than  the  Democratic  ticket. 

John  W.  Gourdin  (Record,  p.  439)  testifies  that  about  30  white  men 
voted  the  Republican  ticket;  he  testifies  that  Ed.  Bethea,  the  man- 
ager who  withdrew  the  tickets  without  being  blindfolded,  cursed  them 
for  doing  so.  He  said  that  "  if  white  men  would  vote  the  damn  nigger 
ticket  he  would  throw  their  votes  out." 

It  is  manifest  from  the  testimony  that  a  gross  fraud  was  committed 
at  this  poll.  Republican  tickets  were  deliberatelj^  withdrawn  and  de- 
stroyed, in  place  of  the  fraudulent  tickets  which  had  been  stuffed  into 
the  box.  We  therefore  correct  this  poll  by  adding  30  votes  to  Lee,  and 
deducting  30  votes  from  Richardson,  which  gives  Lee  141  votes,  and 
Richardson  254  votes. 

Friendship  Precinct. 

The  secretary  of  state  gives  Mr.  Lee,  at  this  precinct,  139  votes,  and 
Mr.  Richardson  104  votes. 

J.  B.  Hayne,  United  States  supervisor,  testifies  (Record,  p.  420) 
that  there  were  157  votes  polled  for  Lee,  and  86  for  Richardson  ;  that 
he  kept  a  poll-list,  and  marked  the  Republicans  "  R,"  and  the  Demo- 
crats "D."  That  list  he  furnishes  (Record,  p.  457),  which  corre- 
sponds with  his  sworn  statement,  to  wit,  Republican  157,  and  Demo- 
cratic 86.  He  states  that  the  Republican  ballots  found  in  the  box 
agreed  exactly  with  his  tally,  viz,  157  votes,  and  in  this  he  is  corrobo- 
rated by  John  M.  Mace,  one  of  the  Democratic  managers  (Record,  p. 
621).    He  states  that— 

The  tickets  were  emptied  on  the  table,  and  we  picked  out  the  Democratic  tickets 
and  the  Republican  tickets,  and  opened  them  as  we  took  them  up  so  as  to  see  if  they 
were  folded  together.  Wall,  one  of  the  Democratic  managers,  took  the  Democratic 
tickets  to  the  hreplace  to  count  them.  The  other  manager,  Mace,  counted  the  Re- 
publican ballots  in  the  presence  of  the  supervisor  and  found  they  agreed  with  his 
taUy— 157. 

He  states  further : 

We  got  through  with  the  Republican  tickets  before  Wall  got  through  counting  the 
Democratic  tickets.  I  turned  to  the  fireplace  to  see  what  kept  him.  When  we  counted 
the  Democratic  tickets,  instead  of  86  there  were  101.  My  tally  of  the  Democratic 
voters  was  86.  All  the  tickets,  Republican  and  Democratic,  Avere  then  placed  back 
in  the  box  by  the  managers,  and  the  excess  of  18  drawn  out  by  the  clerk,  all  of  which 
were  Republican  ballots.  ,  ^ 

Wall,  the  Democratic  manager,  denies  that  he  perpetrated  any  fraud, 
but  the  tally-list  kept  by  the  United  States  supervisor  and  by  the  man- 
agers exactly  agreed.  It  is  not  denied  that  157  Republican  ballots  were 
found  in  the  box.  The  supervisor  furnishes  a  list  of  157  Republicans 
who  voted  at  that  poll.  There  was  an  excess  of  18  ballots  either  in  the 
box  or  added  after  the  box  was  opened.    It  was  a  fraudulent  excess. 


LEE    VS.    RICHARDSON. 


559 


The  managers  deducted  18  ballots  from  Lee,  giving  him  only  139  votes 
and  added  18  votes  to  Eicliardson's  86  votes,  as  found  on  the  list  fur- 
nished on  page  457  of  the  liecord.  It  is,  we  think,  too  clear  for  argu- 
ment that  a  monstrous  fraud  was  attempted  and  carried  out  at  this  poll. 
We  correct  it  by  restoring  to  Lee  the  18  votes,  which  gives  him  157  votes, 
and  deduct  the  same  number  of  votes  from  Eichardson,  which  gives  him 
86  votes  5  this  exactly  corresponds  with  the  names  found  on  the  tally- 
list. 

Correcting  the  vote  at  the  precincts  above  set  forth  as  we  have,  and 
leaving  untouched  the  other  precincts  of  Marion  County,  and  counting 
them  as  returned  by  the  managers,  and  the  result  is  as  follows  : 

Vote  of  Marion  County. 


Precincts. 


As  returned  by  the 
State  canvassers. 


Bichardson. 


Lee. 


As  corrected  by  the 
committee. 


Bichardson. 


Lee. 


Hymansville 

Evergreen 

High  Hill 

Kentyre  Church... 

Stonev 

Old  Ark 

MuUin's 

Marion 

Little  Eock 

Mount  Nebo 

Friendship 

Berry's  X  Boads... 

Mars  Bluflf 

Campbell's  Bridge. 
Aerial 


167 
214 
350 
190 
238 
52 
488 
573 
469 
126 
104 
872 
201 
284 
192 


Bichardson's  majority. 


277 


74 
74 
116 
5 
153 
522 
230 
105 
139 
168 
415 
111 
56 


167 
214 
350 
190 
238 

52 
488 
520 
469 
126 

86 
279 
201 
254 
192 


3,826 


1,186 


277 


74 

74 

116 

153 
576 
230 
105 
157 
261 
41& 
141 
56 


2,640 


We  find  a  majority  in  this  county  for  Eichardson  of  1,186,  iu  place 
of  1,565,  as  returned  for  him  by  the  State  board  of  canvassers. 


CHESTERFIELD  COUNTY. 


By  the  table  of  the  secretary  of  state,  Eichardson  received  in  this 
county  1,917  votes  and  Lee  1,066  votes  (Eecord,  p.  228). 

The  county  board  of  canvassers  did  not  transmit  the  poll-lists,  re- 
turns, and  other  papers  appertaining  to  the  election  to  the  secretary  of 
state,  as  the  law  requires  should  be  done  (Eecord,  p.  228).  But  the 
evidence  found  iu  various  parts  of  the  Eecord  goes  to  show  that  this  is 
a  Democratic  county. 

The  only  poll  attacked  by  Mr.  Lee  in  his  notice  of  contest  is  Cheraw 
precinct.  Mr.  Eichardson  shows  (Eecord,  p.  587)  that  the  clerk  of 
the  court  certifies  that  the  managers'  returns,  turned  over  to  him,  cor- 
responded with  the  statement  of  the  secretary  of  state.  This  certifi- 
cate of  the  clerk  is  really  of  no  force  and  effect.  He  was  not  by  the 
statute  required  or  expected  to  make  any  such  certificate.  The  law  is 
well  settled  that — 

Statpte  certifying  officers  can  only  make  their  certificates  evidence  of  the  fact  which 
the  statute  requires  them  to  certify.  And  when  they  undertake  to  go  beyond  this  and 
certify  otlier  facts  they  are  unoiifi'cial,  and  uo  more  evidence  than  the  statement  of  any 
unofficial  person.     (See  McCrary,  sec.  104.) 


560         ^  DIGEST    OF    ELECTION    LAWS. 

But  there  was  an  election  held  at  Cheraw,  and  Thomas  E.  Smith,  who 
was  one  of  the  commissioners  of  election  for  that  county,  and  was.  pres- 
ent at  Cheraw,  testifies  as  follows  : 

There  were  a  great  many  more  names  on  the  poll-list  than  there  were  ballots  in  the 
box,  but  how  many  I  do  not  recollect. 

Q.  Was  that  defect  remedied  by  the  managers ;  and,  if  so,  how  ? — A.  No,  sir ;  it  was 
not  remedied.  The  managers  called  on  Capt.  A.  A.  Pollock,  a  lawyer,  for  his  advice, 
and  he  said  in  a  case  like  that  he  did  not  know  what  to  do.  But  if  there  were  more 
tickets  in  the  box  than  there  were  names  on  the  poll-list,  he  could  easily  tell  them 
what  to  do  about  it. 

Q.  How  did  the  managers  proceed  to  declare  the  result  of  the  election  under  the  cir- 
cumstances?— A.  They  did  not  take  any  steps  about  there  being  more  names  upon  the 
poll-list  than  ballots,  but  just  counted  the  ballots  in  the  box. 

Q.  Did  they  make  any  report  in  regard  to  their  poll-list  beiu^  in  excess  of  the  bal- 
lots in  the  box  to  your  board  as  county  canvassers! — A.  They  did  not,  sir. 

Q.  Did  you  see  any  tissue  ballots  in  the  Cheraw  box  while  the  managers  were  can- 
vassing the  vote  ? — A.  Yes,  sir. 

Q.  Did  they  count  those  tissue  ballots  to  ascertain  the  result  of  the  election  1 — A. 
Yes,  sir ;  they  did  count  all  of  them. 

Q.  Were  you  present  while  the  voting  was  going  on  during  the  day  ? — A.  I  was  there 
from  7.30  a.'  m.  until  they  got  through  at  night. 

Q.  Did  you  see  any  tissue  ballots  voted  during  the  dayf— :A,  No,  sir;  there  were 
none  voted  openly. 

Q.  When  was  the  first  time  that  you  saw  any  of  those  tissue  tickets  ? — A.  Not  until 
the  managers  opened  the  box  and  commenced  canvassing  that  night. 

This  testimony  is  not  seriously  controverted.  A  ticket  printed  upon 
thin  tissue  paper,  and  admitted  in  the  argument  to  be  a  fac  simile  of 
some  of  those  found  in  the  Cheraw  box,  was  put  in  evidence  by  contest- 
ant. It  was  larger  in  size  than  the  other  ''little  jokers."  And  some  of 
the  witnesses  for  contestee  deny  that  tissue  ballots  were  voted,  evi- 
dently meaning  the  "little  jokers,"  about  two  inches  long  by  one  inch 
wide.  But  two  kinds  of  Democratic  tickets  were  found  in  the  ballot- 
box  at  Cheraw,  and  one  was  printed  on  very  thin  tissue  paper.  We 
have  seen  that  the  secretary  of  state  had  before  him  no  statement  of 
what  the  vote  was  at  Cheraw.  The  clerk's  certificate  is  not  evidence. 
How  the  vote  actually  stood  we  do  not  know,  and  from  the  evidence  on 
file  we  cannot  know.  It  appears  that  the  returns  were  deposited  with 
the  clerk,  and  the  poll-lists  turned  over  to  the  ex)uuty  auditor  by  the 
board  of  county  commissioners.     (T.  "W.  Bouchier,  Eecord,  p.  590.) 

A  manifest  fraud  was  perpetrated  at  Cheraw.  It  is  impossible  to 
determine  what  the  true  vote  was. 

Your  committee  have  no  alternative  save  to  reject  this  poll.  We 
therefore  deduct  the  reported  vote  of  Cheraw,  as  shown  by  Mr.  Kich- 
ardson — to  wit,  for  Richardson  483  votes,  and  for  Lee  458  votes — from 
the  vote  of  the  county,  leaving  for  Eichardson  1,434  votes,  LeeGOS  votes, 
giving  a  majority  to  Eichardson  of  826  votes,  in  place  of  a  majority  of 
851  votes,  as  allowed  him  by  the  State  board  of  canvassers. 

Having  gone  over  the  entire  district  and  purged  the  polls,  precinct  by 
precinct,  by  the  preponderating  weight  of  evidence,  and  permitting  every 
precinct  to  stand  where  the  matter  was  doubtful,  and  not  clearly  made 
out,  we  tabulate  the  result  as  follows : 


MACKEY    VS.    O  CONNOR. 


561 


Counties. 


Actual  vote  cast  as 
found  by  tlie  com- 
mittee. 


Majorities. 


Ricliardson.  j    Lee. 


SichardsoD. 


Lee. 


Georgetown  ... 

Sumter 

"Williamsburg 

HoiTy 

Darlington 

Marlborough  . 

Marion , 

Cliosterfield  ... 


Majority  for  Mr.  Lee  in  the  district. 


791 
2,393 
2,164 
2,186 
2,395 
2,129 
3,  826 
1,434 


17,  320 


3,101 

4,272 
2,576 

771 
1,884 
1,752 
2,640 

608 


17,604 


1,415 
511 
377 

1,186 
826 


4,315 


2,310 

1,877 
412 


4,599 
4,315 


284 


From  which  it  appears  that  Samuel  Lee  was  elected  by  a  majority  of 
284  votes. 
We  therefore  recommend  the  adoption  of  the  foUowiug  resolutions : 

I.  Resolved,  That  John  S.  Eichardson  was  not  elected  as  a  Eepresent- 
ative  to  the  Forty-seventh  Congress  of  the  United  States  from  the  first 
Congressional  district  of  South  Carolina,  and  is  not  entitled  to  occupy 
a  seat  in  this  House  as  such. 

II.  Resolved,  That  Samuel  Lee  was  duly  elected  as  a  Eepresentative 
from  the  first  Congressional  district  of  South  Carolina  to  the  Forty- 
seventh  Congress  of  the  United  States,  and  is  entitled  to  his  seat  as 
such. 

A.  H.  PETTIBOl!fE. 
F.  JACOBS,  Jr. 
WM.  G.  THOMPSON. 
J.  M.  EITCHIE. 
JNO.  T.  WAIT. 
GEO.  C.  HAZELTOK 
A.  A.  EAi^NEY. 


EDMUND  W.  M.  MACKEY  vs.  O'CONNOR. 

Second  Congkessional  District  of  South  Carolina. 

E.  W.  M.  Mackey  contested  the  election  for  Eepresentative  in  Congress  held  in  the 
second  district  of  Sonth  Carolina  on  November  2,  1880,  at  which  M.  P.  O'Connor 
was  declared  elected  by  the  State  board  of  canvassers,  and  the  certificate  of  elec- 
tion was  issued  to  him. 

Notice  of  contest  was  served  on  Mr.  O'Connor,  and  he  filed  his  answer.  After  the 
testimony  in  chief  of  Mr.  Mackey  and  that  in  reply  of  Mr.  O'Connor  was  taken  ^ 
Mr.  O'Connor  died,  and  on  May  23,  1881,  the  governor  of  South  Carolina  ordered 
a  special  election  for  a  member  of  Congress  "  to  serve  for  the  remainder  of  the 
term  for  which  the  said  Michael  P.  O'Connor  was  elected." 

At  this  special  election  Mr.  Samuel  Dibble  was  voted  for  and  returned  elected,  and 
he  was  sworn  in  under  objection,  and  occupied  a  seat  in  the  House  aa  the  suc- 
cessor of  Mr.  O'Connor. 

Mr.  Dibble  protested  against  any  action  being  taken  in  this  case  on  the  ground  that 
the  contest  of  Mackey  vs,  O'Connor  abated  on  the  death  of  Mr.  O'Connor,  and 
H.  Mis.  35 36 


562  DIGEST  OF  ELECTION  CASES. 

the  House  had  no  longer  jurisdiction  of  that  case ;  that  as  he  was  not  a  party  ta 
the  pleadings  or  proofs  he  should  not  he  bound  or  atFected  by  either  ;  and  that 
the  title  to  his  seat  could  only  be  assailed  by  proceedings  de  novo. 

Seld,  that  the  right  of  Mr.  Dibble  to  a  seat  in  the  House  depended  on  the  title  of  Mr. 
O'Connor,  and  he  must  be  bound  by  the  pleadings,  proofs,  and  decree  legitimately 
growing  out  of  that  contest. 

The  returns  are  corrected  according  to  the  evidence,  and  it  appearing  that  Mr- 
O'Connor  was  not  elected,  there  was  no  vacancy  created  by  his  death  and  no  re- 
mainder of  a  term  to  be  filled,  and  Mr.  Dibble  is  not  entitled  to  his  seat. 

The  House  adopted  the  majority  report. 


April  10, 1882. — Mr.  S.  H.  Miller,  from  the  Committee  on  Elections, 
submitted  the  following 

EEPOBT: 

The  Committee  on  Elections,  to  whom  was  referred  the  case  of  E.  W. 
M.  Mackey,  contesting  the  seat  of  M.  P.  O'Connor,  now  filled  by  Sam- 
uel Dibble,  who  claims  to  hold  the  same  by  virtue  of  a  special  election, 
ordered  by  the  governor  of  South  Carolina,  to  fill  an  assumed  vacancy 
occasioned  by  the  death  of  M.  P.  O'Connor,  occurring  subsequent  to 
the  date  of  the  election  on  the  2d  of  IS'ovember,  1880,  and  prior  to  the 
assembling  of  the  Forty-seventh  Congress,  submit  the  following  report: 

This  contest  comes  from  the  second  Congressional  district  of  South 
Carolina,  composed  of  the  counties  of  Charleston,  Orangeburg,  and 
Clarendon.  The  election  was  held  on  the  2d  day  of  November,  1880. 
Two  candidates  were  voted  for — E.  W.  M.  Mackey  and  M.  P.  O'Connor. 
The  State  board  of  canvassers,  acting  upon  the  returns  made  to  them 
by  the  county  canvassers,  declared  Mr.  O'Connor  elected,  and  the  cer- 
tificate of  election  was  accordingly  issued  to  him. 

Whereupon  Mr.  Mackey  commenced  this  contest.  The  notice  of  con- 
test and  proofs  submitted  by  Mr.  Mackey  and  the  answer  and  proofs 
of  Mr.  O'Connor  are  contained  in  Mis.  Doc.  No.  15  of  the  present  ses- 
sion. The  pleadings  and  proofs  are  quite  voluminous.  The  notice  of 
contest  contains,  inter  alia,  the  following  specific  allegations : . 

2.  That  at  the  following  voting  precincts,  to  wit,  City  Hall,  Court-house,  Market 
Hall,  Palmetto  Engine-house,  Hope  Engine-house,  Eagle  Engine-house,  Washington 
Engine-house,  Marion  Engine-house,  Niagara  Engine-house,  and  Ashley  Engine-house,^ 
in  the  city  of  Charleston ;  and  Camp  Ground,  Enterprise,  Twenty-two-mile  House, 
Cross  Roads,  Hickory  Bend,  Biggin  Church,  Piuopolis,  St.  Stephens,  Blackville,  Ben 
Potter's,  Moultrievil le,  and  Henderson's  Store,  in  the  county  of  Charleston ;  and  Oran ge- 
burg,  Branchville,  Brown's,  Corbettsville,  Cedar  Grove,  Conner's,  Fort  Motte,  Ayers', 
Gleaton'a,  Lewisville,  Easterlin's,  Rowesville,  Jamison's,  Bull  Swamp,  Ziegler's,  Wash- 
ington Seminary,  and  Bookhardt's,  in  the  county  of  Orangeburg ;  and  Fulton,  Fork, 
Witherspoon's,  Jordan,  Manning,  Packsville,  Calhoun,  and  Motts,  in  the  county  of 
Clarendon,  a  deliberate  system  of  ballot-box  stuffing  was  jjracticed  by  or  with  the 
knowledge  and  assent  of  the  managers  of  the  election  of  said  precincts,  all  of  whom, 
without  a  single  exception,  were  of  the  same  political  faith  as  Mr.  O'Connor,  and  in 
every  instance  his  political  partisans  and  supporters ;  that  by  reason  thereof  the  vote 
actually  cast  for  Mr.  Mackey  was  larger,  and  the  vote  actually  cast  for  Mr.  O'Connor 
was  smaller,  than  appears  on  the  face  of  the  returns  made  by  the  managers  of  elec- 
tions at  the  voting  precincts  aforesaid;  that  the  difference  between  the  vote  as  act- 
ually cast  and  the  vote  as  returned  by  the  managers  aforesaid  arises  from  the  fact 
that  at  each  of  the  aforesaid  polls  numerous  ballots  bearing  Mr.  O'Connor's  name  for 
Congress  were  fraudulently  placed  in  the  ballot-box  for  the  purpose  of  creating  an 
excess  of  votes  over  voters,  and  thereby  compelling  the  managers  to  draw  out  and  de- 
stroy the  excess  of  ballots  thus  created  in  order  to  reduce  the  number  of  ballots  in  the 


MACKEY    VS.    OCONNDPt.  563 

box  to  the  number  of  names  on  the  poll-list ;  that  in  drawing  ont  of  the  box  at  each 
poll  the  excess  of  ballots,  fraudulently  created  as  aforesaid  numerous  ballots  bearing 
Mr.  ^lackey's  name  for  Congress,  and  which  had  been  legally  voted,  were  drawn  out 
and  destroyed,  and  in  their  place  was  counted  a  corresponding  number  of  ballots  with 
Mr.  O'Connor's  name  for  Congress  thereon  which  had  not  been  legally  voted. 

3.  That  the  returns  made  to  the  State  board  of  canvassers  by  the  commissioners  of 
elections  of  Charleston,  Orangeburg,  and  Clarendon  Countiesof  the  result  of  the  elec- 
tion in  said  counties  do  not  contain  true  and  correct  statements  of  the  votes  cast  for  a 
member  of  Congress  in  said  counties. 

4.  That  in  Orangeburg  County  the  commissioners  of  elections  refused  to  count  and 
canvass  and  inclufle  in  their  statement  of  the  result  of  the  election  the  votes  cast,  can- 
vassed, and  duly  returned  for  a  member  of  Congress  at  the  following  voting  precincts, 
to  wit :  Louisville,  Fort  Motte,  Fogies,  and  Bookhart. 

5.  That  in  Charleston  County  the  commissioners  of  elections  refused  to  count  and 
canvass  and  include  in  their  statement  of  the  result  of  the  election  the  votes  cast,  can- 
vassed, and  duly  returned  for  a  member  of  Congress  at  the  following  voting  precincts, 
to  wit:  Calamus  Pond,  Strawberry  Ferry,  Biggin  Church,  Black  Oak,  Ten-Mile  Hill, 
Brick  Church,  and  Enterprise. 

6.  That  at  Haut  Gap  voting  precinct  in  the  county  of  Charleston  1,037  were  cast 
for  contestant,  and  46  votes  were  cast  for  contestee,  and  at  the  close  of  the  election 
the  said  votes  were  duly  counted  and  canvassed,  and  that  the  ballots  cast  at  the  elec- 
tion, together  with  a  statement  of  the  result  and  the  poll-list  at  the  close  of  the  can- 
vass by  the  managers,  were  put  in  the  box,  the  box  covered  with  paper  and  sealed 
with  wax  and  delivered  to  J.  H.  Wilson,  one  of  the  managers,  to  be  delivered  by  him 
to  the  county  canvassers.  That  the  said  manager  brought  the  box  with  the  seals  un- 
broken and  delivered  it  to  the  county  canvassers;  that  at  the  time  of  its  said  delivery 
to  the  county  canvassers  it  contained  the  ballots  as  cast ;  that  subsequent  to  irs  deliv- 
ery to  the  county  canvassers  the  said  box  was  violated,  and  when  publicly  opened  the 
return  could  not  be  found ;  that  the  ballots  had  been  changed  and  other  ballots  fraudu- 
lently placed  therein,  and  when  so  counted  by  the  county  canvassers  they  announced 
1, 05 1' votes  for  Mr.  O'Connor  and  19  votes  for  Mr.  Mackey. 

There  are  other  allegations  of  fraud :  illegal  and  fraudulent  conduct  of 
officers  of  elections;  illegal  and  fraudulent  tampering  with  ballot-boxes, 
and  false  returns  of  the  actual  number  of  votes  cast,  but  those  above 
specified  the  committee  regard  as  the  most  material. 

The  answer  of  Mr.  O'Connor  denies  the  second  and  third  allegations, 
virtually  admits  the  fourth  and  sixth,  and  admits  the  fifth,  and  avers  that 
threats,  acts  of  intimidation  and  violence  were  perpetrated  by  the  par- 
tisans and  supporters  of  Mr.  Mackey,  thus  overawing  the  peaceable  and 
quiet  colored  men  who  desired  to  vote  for  him  (Mr.  O'Connor),  and  pre- 
venting them  from  so  doing,  many,  through  fear,  staying  at  home  and 
not  ceming  out  to  vote,  and  many  by  duress  voting  for  Mr.  Mackey 
against  their  will. 

After  the  testimony  in  chief  of  Mr.  Mackey,  and  that  in  reply  of  Mr. 
O'Connor  had  been  taken,  Mr.  O'Connor  died,  on  April  26th,  1881,  and 
on  the  23d  day  of  May,  1881,  the  governor  of  South  Carolina,  assuming 
that  a  vacancy  w^as  caused  in  the  representation  of  the  State,  by  Mr. 
O'Connor's  death,  ordered  a  special  election  to  fill  the  same.  At  that 
special  election  Mr.  Samuel  Dibble,  the  sitting  member,  was  voted  for 
and  returned  elected,  receiving  but  7,344  votes,  in  a  district  that  on 
November  2,  1880,  Mr.  O'Connor  claimed  gave  him  17,569  votes. 

There  was  no  opposing  candidate,  the  Republicans  of  the  district 
holding  that  Mr.  Mackey,  and  not  Mr.  O'Connor,  had  been  elected  on 
November  2,  1880,  and  therefore  the  death  of  the  latter  had  created  no 
vacancy.  Upon  the  certificate  of  election  presented  by  Mr.  Dibble  he 
was  sworn  in,  under  objection,  and  now  occupies  a  seat  in  the  House 
as  the  successor  of  Mr.  O'Connor. 

At  the  commencement  of  the  hearing,  the  sitting  member  protested 
against  the  committee  taking  any  action  whatever  upon  the  case,  on 
the  ground  that  the  contest  of  Mackey  vs.  O'Connor  abated  on  the  death 
of  Mr.  O'Connor,  and  that  the  House  had  no  longer  jurisdiction  of  that 


564  DIGEST   OF   ELECTION   CASES. 

case.  He  coutended  that  iDasmiicli  as  he  was  not  a  party  to  the  plead- 
ings or  proofs,  he  should  not  be  bound  or  aifected  by  either;  th»t  the 
only  way  the  title  to  his  seat  could  be  assailed  was  by  commencing  pro- 
ceedings de  novo,  and  permitting  him  to  defend  Mr.  O'Connor's  claim. 

In  the  opinion  of  the  committee  this  position  is  utterly  untenable. 
The  contestant,  Mr.  Mackej',  bases  his  claim  ui>on  the  ground  that  he, 
and  not  Mr.  O'Connor,  received  the  greatest  number  of  legal  votes  at 
the  general  election  held  November  2,  1880.  To  establish  his  claim, 
the  provisions  of  the  statute  regulating  the  mode  and  manner  of  con- 
testing an  election  were  invoked  and  complied  with.  Notice  of  con- 
test was  duly  served  upon  Mr.  O'Connor,  who,  in  turn,  put  in  an  answer 
thereto,  and  upon  the  issue  thus  made  up  a  large  mass  of  testimony,  as 
heretofore  stated,  was  taken. 

The  right  of  the  contestant,  as  also  of  the  people  of  that  Congres- 
sional district,  who,  after  all,  are  the  real  parties  in  interest,to  have  the 
facts  of  that  election  inquired  into  and  adjudicated  by  the  Hous,e,  can- 
not be  changed  by  the  fact  of  the  death  of  the  contestee.  If  the  con- 
testant really  received  at  that  election,  as  he  claims,  the  largest  num- 
ber of  legal  votes,  it  is  his  right  and  the  right  of  the  people  of  that  dis- 
trict that  he  be  awarded  the  seat  he  was  chosen  to  fill.  The  committee, 
however,  are  of  opinion  that  Mr.  Dibble,  if  elected  to  any  position,  was 
elected  to  fill  a  vacancy  created  by  the  death  of  Mr.  O'Connor,  and  for 
his  unexpired  term. 

This  conclusion  is  emphasized  by  the  significant  language  used  in  the 
proclamation  of  the  governor  ordering  the  special  election  by  virtue  of 
•which  Mr.  Dibble  claims  the  seat.    It  is  as  follows : 

State  of  South  Carolina, 
Executive  Chamber, 
Columbia,  S.  C,  May  23,  1881, 
To  the  commissioners  of  election  and  the  managers  of  election   for  the  connties  of 
Charleston,  Orangeburg,   and  Clarendon,  composing  the  second  Congressional  dis- 
trict of  the  State  of  South  Carolina  : 

Whereas  a  vacancy  in  the  representation  of  the  said  second  Congressional  district 
in  the  House  of  Representatives  of  the  United  States  of  America  has  happened,  by 
the  death  of  Michael  P.  O'Connor,  who,  at  the  general  election  held  November  "2,  A.  D. 
1880,  was  chosen  a  member  of  said  House  of  Representatives  for  said  Congressional 
district  for  the  term  of  two  years  from  March  4,  A.  D.  1881 ;  and  whereas  the  Consti- 
tution of  the  said  United  States  in  such  cases  requires  the  executive  authority  of  the 
State  to  issue  a  writ  of  election  to  fill  such  vacancy  : 

Now,  therefore,  you  and  each  of  you  are  hereby  required  to  hold  an  election  in  ac- 
cordance with  the  laws  for  holding  general  elections  for  a  member  of  the  said  House 
of  Representatives  for  the  said  Congressional  district,  to  serve  for  the  remainder 

OF  THE   term  for   WHICH     THE    SAID    MiCHAEL   P.     O'CONNOR    WAS    ELECTED  ;     the 

polls  to  be  opened  at  the  various  places  of  election  in  the  said  counties  on  Thursday, 
the  ninth  day  of  June,  A.  D.  1881,  by  the  various  sets  of  managers  for  those  places 
respectively. 

Given  under  ray  hand  and  the  seal  of  the  State  of  South  Carolina,  this  23d  day  of 
May,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty-one. 

JOHNSON  HAGOOD 

Governor. 
R.  M.  Sims, 

Secretary  of  State. 

The  right  of  Mr.  Dibble  to  a  seat  in  the  House  depends  upon  the  title 
of  Mr.  O'Connor.  By  the  very  language  of  the  proclamation  he  was  a 
candidate  *'to  serve  for  the  remainder  of  the  term  for  which  the  said 
Michael  P.  O'Connor  was  elected ; "  and  if  it  appears  from  the  proofs 
that  Mr.  O'Connor  was  not  elected,  then  there  was  no  vacancy  created 
by  his  death,  no  remainder  of  a  term  to  be  filled,  and  Mr.  Dibble  could 
have  no  rights  to  be  prejudiced  by  any  pleadings  or  agreements  made 


MACKEY    VS.    O'CONXOR.  565 

by  Mr.  O'Connor.  In  consenting  to  be  a  candidate  to  serve  for  the  re- 
mainder of  the  term,  for  which  Mr.  O'Connor  claimed  to  have  been  elected, 
Mr.  Dibble  rested  his  title  to  1  he  seat  in  dispute  upon  the  title  of  his  prede- 
cessor, and  he  must  be  bound  by  the  pleaxlings,  proofs,  and  decree  grow- 
ing legitimately  out  of  that  contest.  To  insist  that  Mr,  Mackey  should 
abandon  the  testimony  taken  in  the  case  prior  to  the  death  of  Mr.  O'Con- 
nor— and  all  of  it  was  taken  prior  thereto  except  the  evidence  of  con- 
testant in  rebuttal,  and  which  is  not  material  so  far  as  the  true  issue  is 
concerned — and  commence  anew  a  contest  with  Mr.  Dibble,  involving 
the  same  specifications  of  contest,  is,  in  the  opinion  of  the  committee, 
not  only  vain  but  in  conflict  with  every  principal  of  law  and  equity. 

It  was  claimed  by  the  counsel  of  Mr.  Dibble  in  argument  that  if,  after 
the  testimony  had  been  taken  Mr.  O'Connor  had  resigned,  an  election 
ordered  by  the  governor  to  fill  the  assumed  vacancy,  and  a  successor 
elected,  the  contest  between  the  original  parties  would  abate  as  fully 
as  if  the  contestee  had  died.  These  propositions  must  both  stand  or 
fall  together.  If  such  was  the  law  there  would  be  nothing  to  prevent 
a  contestee  from  abating  a  contest  at  any  time  at  his  own  volition.  If, 
after  the  testimony  had  been  taken,  the  contestee  should  be  forced  to 
conclude  that  his  case  was  hopeless,  it  would  only  be  necessary  for  him 
to  resign,  have  the  governor  order  a  new  election,  again  be  a  candidate, 
with  a  hope  that  under  circumstances  more  favorable  to  him  and  his 
party  he  might  succeed.  Assured  that  his  former  certificate  was  proven 
worthless  he  would  have  nothing  to  lose,  and  if  successful  in  receiving 
a  majority  at  the  second  election  he  would  be  enabled  thereby,  by  his 
voluntary  resignation,  to  escape  the  effect  of  the  frauds  perpetrated  by 
him  or  his  partisan  supporters  at  the  first  election.  It  is  only  necessary 
to  state  the  proposition  to  make  manifest  its  fallacy. 

After  the  committee  had  settled  the  foregoing  question  the  sitting 
member  made  a  second  motion  to  suppress  the  testimony  taken  in  the 
case,  alleging  that  the  testimony  as  printed  was  not  the  testimony  as 
originally  taken,  but  that  the  same  had  been  subsequently  altered  and 
perverted  by  the  contestant.  In  support  of  this  motion  Mr.  Dibble 
submitted  a  number  of  ex  parte  affidavits.  It  was  further  charged  that 
the  technical  requirements  of  the  statute  in  reference  to  taking  testi- 
mony in  contested  elections  had  not  been  complied  with,  either  in  the 
transcribing  of  the  depositions  in  their  attestation  or  in  the  manner  of 
their  being  forwarded  to  the  Clerk  of  the  House.  To  meet  the  first  and 
really  only  serious  charge  the  contestant  filed  the  affidavits  of  eighty- 
three  of  the  ninety -four  witnesses  examined  by  him,  each  of  whom  de- 
posed that  he  had  carefully  read  his  deposition,  as  contained  in  the 
printed  record,  and  that  the  same  was  in  every  particular  the  deposition 
made  by  him  before  the  notary  public,  and  that  there  had  been  no  gar- 
bling or  alteration  in  or  addition  thereto,  and  they  each  again  made 
oath  to  the  truth  of  the  matters  and  things  therein  contained.  The  no; 
tary  who,  by  agreement  of  Mr.  Mackey  and  Mr.  O'Connor,  took  the  tes- 
timony steuographically,  also  made  oath  that  in  the  limited  time  given 
him  he  had  compared  with  his  stenographic  notes  the  depositions  of 
fourteen  witnesses  as  printed  in  the  record,  and  that  the  depositions  as 
printed  correspond  in  every  particular  with  the  original  stenographic 
notes  of  such  depositions.  The  names  of  the  witnesses  are:  S.  W.  Mc- 
Kinlay,  J.  G.  Smalls,  J.  J.  Lessene,  G.  H.  F.  Graham,  St.  Cyprian  De- 
lanv.  F.  H.  Carmand,  George  E.  Hart,  Benjamin  Moultrie,  J.  J.  Moore, 
M.  Caulfield,  Xestor  Currey,  E.  A.  Webster,  T.  C.  Albergotti,  and  T.  A. 
Hugueuin,  and  their  testimony  will  be  found  in  the  record  by  reference 
to  the  index  thereto. 


566  DIGEST   OF   ELECTION   CASES. 

'After  due  consideration  of  these  ex  parte  affidavits  of  the  witnesses 
themselves,  and  of  the  notary  and  stenographer,  the  committee  are  sat- 
isfied that  the  testimony  as  printed  is  the  same  as  when  first  taken,  and 
that  it  has  not  been  in  any  way  altered  or  perverted  to  the  prejudice  of 
Mr.  Dibble.  There  was  ample  time  given  Mr.  Dibble  to  have  obtained 
evidence  from  the  stenographer  that  the  deposition  of  any  witness,  as 
printed,  was  compared  by  him  with  tlie  original  stenographic  notes  in 
his  possession,  and  that  the  same  had  been  altered,  perverted,  or 
changed;  yet  it  is  somewhat  remarkable  that  no  such  evidence  has  been 
offered  or  suggested  to  the  committee. 

The  provisions  of  the  statute  in  regard  to  the  form  and  manner  of  tak- 
ing and  forwarding  testimony  in  contestede-lection  cases  are  merely 
directory,  and  therefore  the  only  question  which  the  committee  has 
deemed  it  necessary  to  consider  upon  this  point  has  been  whether  the 
essential  i)rovisions  of  the  law  had  been  complied  with  ;  that  is,  had  the 
testimony  of  the  witnesses  been  correctly  reported  by  the  notary  and 
stenographer,  and  had  that  testimony  been  forwarded  to  the  House.  If 
Mr.  Dibble  had  shown  by  proper  evidence  that  the  depositions  before 
the  committee  were  not  the  depositions  of  the  witnesses  (and  he  could 
have  done  this  by  the  ex  parte  aflBdavit  of  the  stcnograj^her,  if  such  was 
the  case),  he  would  have  disclosed  a  matter  fatal  to  their  consideration. 

But,  inasmuch  as  there  is  but  a  single  affidavit  tending  to  show  such  a 
state  of  facts,  which  is  contradicted  directly,  so  far  as  the  notary  had 
examined  his  original  notes,  by  the  evidence  of  the  stenographer,  and 
also  by  the  affidavits  of  eighty-three  of  the  witnesses  themselves,  it 
surely  cannot  be  considered  that  he  has  maintained  the  truth  of  his 
charge.  The  burden  of  proof  was  upon  him  to  reasonably  satisfy  the 
committee,  by  a  preponderance  of  e\idence,  of  the  truth  of  the  facts  al- 
leged in  his  protest ;  this  the  committee  finds  he  has  not  done.  The 
affidavits  submitted  by  the  contestant  in  answer  to  Mr.  Dibble's  protest 
are  uncontradicted  by  any  affidavit  filed  by  the  latter,  and  they  estab- 
lish the  fact  that  the  testimony,  as  found  in  the  printed  record,  is  in 
every  particular  the  testimony  actually  given  by  the  witnesses,  and 
taken  stenographically  by  the  notary,  and  afterwards  transcribed  by  his 
direction.  It  is  not  controverted  that  the  evidence  was,  bj'  the  agree- 
ment of  Mr.  Mackey  and  Mr.  O'Connor,  taken  stenographically  by  the 
notary.  These  stenographic  notes  are  the  original  evidence  of  what  the 
witnesses  deposed.  They  were  taken  necessarily  in  the  notary's  presence, 
who  was  also  the  stenographer.  They  were  really  the  depositions  in  the 
cause.  By  the  stipulations  it  was  agreed  that  these  stenographic  notes 
should  be  afterwards  transcribed.  The  manner  in  which  they  were 
transcribed,  and  by  whom  transcribed,  is  a  matter  of  no  importance, 
providing  they  were  transcribed  correctly,  since  the  notary  public  ac- 
cepted the  work  as  performed  by  the  copyists,  and  certified  to  the  same 
as  being  the  depositions  taken  by  him.  The  fact  that  the  contestant 
assisted  in  making  transcripts  of  this  evidence  does  not  detract  from  its 
correctness.  It  was  within  the  power  of  Mr.  Dibble  to  have  shown  by 
the  stenographer,  in  whose  possession  the  original  notes  are  yet,  that 
the  evidence  of  a  single  witness,  as  printed,  was  subsequently  compared 
by  him,  and  found  by  him  to  be  incorrect,  if  such  had  been  the  case. 
The  committee  has  a  right  to  conclude,  in  view  of  the  persistency  man- 
ifested by  counsel  in  this  case,  that  it  was  impossible  to  get  such  evidence 
from  the  stenographer.  The  committee,  therefore,  conclude  that  the 
depositions  as  printed  were  the  depositions  of  the  witnesses  actually 
taken  by  the  stenographer,  and  they  therefore  proceed  to  a  considera- 
tion of  the  testimony  to  determine  the  merits  of  the  case. 


MACKEY    VS.    O'CONNOR.  567 

Under  the  election  laws  of  South  Carolina  the  governor  of  the  State, 
prior  to  each  general  election,  appoints  for  each  county  in  the  State 
three  commissioners  of  elections.  These  commissioners  of  elections  aj)- 
point  for  each  poll  in  their  respective  counties  three  managers  of  elec- 
tions (Rev.  Stat.,  Title  II,  chap,  viii,  sec.  2).  By  the  managers  so  ap- 
pointed the  election  at  each  poll  is  conducted,  and  at  its  close  the  votes 
counted  and  a  return  thereof  made  to  the  commissioners  of  elections 
(15  Stat.,  171),  who,  on  the  Tuesday  next  following  the  election,  meet 
and  organize  as  a  board  of  county  canvassers,  and  from  the  returns 
made  to  them  by  the  managers,  they  count  or  canvass  the  votes  of  the 
county  and  make  such  statements  thereof  to  the  State  board  of  can- 
vassers as  the  nature  of  the  election  requires — making  for  Representa- 
tive in  Congress  "separate  statements  of  the  whole  number  of  votes 
given  in  such  county"  (Rev.  Stat.,  Title  II,  chap,  viii,  sees.  15-18).  From 
these  statements  of  votes  made  by  the  county  canvasser,  the  board  of 
State  canvassers  determine  and  certify  the  number  of  votes  cast  for  the 
different  candidates  for  the  various  offices  voted  for,  and  declare  what 
persons  have  been  by  the  greatest  number  of  votes  duly  elected  to  such 
oflfices.     {Ibid.j  sees.  24-26.) 

Acting  upon  the  returns  made  by  the  county  canvassers  of  Charleston, 
Orangeburg,  and  Clarendon,  the  counties  composing  the  second  Con- 
gressional district  of  South  Carolina,  the  State  board  of  canvassers  cer- 
tified and  declared  that  at  the  election  held  K'ovember  2, 1880,  the  vote 
cast  for  Representative  in  Congress  from  the  said  district  was  as  follows 
(Rec,  p.  11) : 


M.  P.  O'Con-    E.  W.  M. 
nor.  Mackey. 


Charleston 11,429  8,112 

Orangeburg 3,627  2,712 

Clarendon 2,513  1,473 

Total 17,569  12,297 

Majority  for  O'Connor 

Although  the  vote  certified  by  the  State  board  of  canvassers  is  a  cor- 
rect aggregate  of  the  vote  returned  to  it  by  the  county  boards  of  can- 
vassers, it  is  not  a  true  statement  of  the  result  of  the  election,  because 
the  returns  made  to  the  State  board  of  canvassers  by  the  county  can- 
vassers of  Charleston  and  Orangeburg,  upon  which  the  State  board 
acted,  were  not  full  and  correct  statements  of  the  vote  cast  in  those 
counties.  Had  the  county  canvassers  in  the  three  counties  in  the  dis- 
trict counted  the  vote  as  returned  to  them  by  the  managers  of  the  elec- 
tion of  the  several  precincts  in  the  several  counties,  the  result  would 
have  been  a  majority  of  879  for  Mr.  Mackey.  These  managers  in  every 
instance  and  at  every  poll  in  the  district  were  of  the  same  political  faith, 
and  were  the  partisan  supporters  of  Mr.  O'Connor.  The  majority  cer- 
tified for  Mr.  O'Connor  by  the  county  board  of  canvassers,  all  of  whom 
were  Democrats,  was  obtained  by  entirely  reversing  the  vote  of  one, 
Haut  Gap,  and  leaving  out  in  the  final  count  seven  precincts  in  Charles- 
ton County,  to  wit:  Black  Oak,  Strawberry,  Calamus  Pond,  Biggin 
Church,  Brick  Church,  Ten  Mile  Hill,  and  Enterprise;  and  four  in 
Orangeburg  County,  to  wit:  Fogies,  Fort  Motte,  Lewisville,  and  Book- 
liardt's.  The  committee  briefly  call  attention  to  these  twelve  precincts. 
There  is  no  dispute  about  the  vote  in  any  others. 


568  DIGEST    OF    ELECTION    CASES. 

HAUT  GAP. 

In  the  statement  of  the  vote  of  Charleston  County,  made  by  the 
county  canvassers  of  that  county,  were  included  1,052  votes  for  Mr. 
O'Connor  and  19  for  Mr.  Mackey,  as  having  been  cast  at  Haut  Gap  pre- 
cinct, when  in  truth  and  in  fact  the  vote  actually  cast  and  counted  by 
the  managers  at  that  poll  was  46  for  Mr.  O'Connor  and  1,037  for  Mr. 
Mackey.  Such  was  the  return  made  by  the  managers,  and  sealed  up 
in  the  box,  but  after  the  delivery  of  the  ballot  box  to  the  county  can- 
vassers the  seals  were  broken,  the  returns  of  the  managers  abstracted 
from  the  box,  and  the  ballots  originally  cast  by  the  voters  taken  out, 
and  others  substituted  therefor,  so  that  when  the  box  was  publicly 
opened  by  the  county  canvassers,  instead  of  there  being  in  it  46  votes 
for  Mr.  O'Connor  and  1,037  for  Mr.  Mackey,  and  a  return  to  that  effect^ 
there  were  1,052  votes  for  Mr.  O'Connor  and  only  19  for  Mr.  Mackey, 
and  no  return  whatever.  Without  making  any  effort  to  ascertain  what 
had  become  of  the  return,  the  county  canvassers  counted  the  fraudulent 
ballots  found  in  the  box  and  included  the  result  of  their  count  in  the 
statement  of  the  vote  of  the  county,  although  before  their  adjournment 
positive  i^roof  of  the  correct  vote  and  of  the  violation  of  the  box  was 
furnished  them. 

BLACK  OAK. 

The  vote  as  returned  by  the  managers  for  this  precinct  was  : 

For  Mr.  Mackey 393 

For  Mr.  O'Connor 11 

This  vote  is  established  by  the  evidence  of  S.  W.  McKinlay,  one  of 
the  election  supervisors  (p.  163),  and  by  the  sworn  return  of  the  board 
of  managers  of  the  precinct  (p.  167),  and  disputed  by  no  one. 

STRAWBERRY  FERRY. 

The  vote  as  returned  by  the  managers  for  this  precinct  was : 

For  Mr.  Mackey 573 

For  Mr.  O'Connor 90 

This  vote  is  established  by  John  G.  Smalls,  one  of  the  supervisors, 
who  testified  that  the  number  of  ballots  corresponded  with  the  number 
of  names  on  the  poll-list ;  that  the  managers  counted  and  canvassed  the 
votes  in  his  presence,  declared  the  result,  and  signed  the  return  in  his 
presence  (p.  168).  Two  of  the  managers  who  conducted  the  election  at 
the  poll  were  examined  by  Mr.  O'Connor,  and  they  do  not  deny  the  cor- 
rectness of  the  vote  (pp.  420,  433). 

CALAMUS  POND. 

The  vote  as  returned  by  the  managers  of  this  precinct  was : 

For  Mr.  Mackey - 511 

For  Mr.  O'Connor 119 

This  vote  is  established  by  J.  J.  Lessene,  one  of  the  supervisors,  and 
signed  by  him  and  the  Democratic  supervisor  (pp.  172,  173).  One  of 
the  managers  was  examined  by  Mr.  O'Connor,  and  he  did  not  attempt 
to  deny  the  correctness  of  the  vote. 


MACKEY    VS.    O'COXXOE.  569 

BIGGIN   CHURCH. 

The  vote  as  returned  by  the  managers  of  this  precinct  was  : 

For  Mr.  Mackej' 280 

For  Mr.  O'Connor 63. 

This  vote  is  established  by  the  evidence  of  G.  H.  F.  Graham,  one  of 
the  supervisors  (p.  178).  He  testifies  that  there  vras  an  excess  of  14 
votes  in  the  box  at  the  close  of  the  polls,  as  compared  with  the  poll- 
lists;  that  all  the  Eepublican  voters  folded  up  their  tickets  in  the  pres- 
ence of  the  managers  to  show  them  that  they  voted  but  one  ticket ; 
that  in  drawing  out  the  excess  of  14  votes  the  manager  drew  out  13 
Eepublican  tickets  and  but  one  Democratic  ticket;  and  that  at  the  close 
of  the  election  the  managers  counted  the  votes  as  above,  and  made  out 
and  signed  the  return  and  put  it  in  the  box.  Two  of  the  managers 
were  examined  by  Mr.  O'Connor,  but  neither  denied  the  correctness 
of  the  above  vote. 

BRICK  CHURCH. 

The  vote  as  returned  by  the  managers  of  this  precinct  was : 

For  Mr.  Mackey 732 

For  Mr.  O'Connor '. 16 

This  vote  is  established  by  F.  H.  Carmand,  one  of  the  supervisors. 
He  testified  that  there  was  no  excess  of  ballots,  that  the  managers 
counted  and  canvassed  the  votes  in  his  presence,  made  a  return  thereof 
and  sealed  it  up,  and  that  it  corresponded  with  the  above  (p.  185). 
3Ir.  O'Connor  examined  one  of  the  managers,  but  he  did  not  dispute 
the  above  in  any  particular. 

TEN-MILE  HILL. 

The  vote  as  returned  by  the  managers  of  this  precinct  was  : 

For  Mr.  Mackey 603 

For  Mr.  O'Connor 5 

This  vote  is  established  by  G.  St.  Cyprian  Delany,  one  of  the  super- 
visors. He  testified  that  he  saw  the  managers  canvass  and  count  the 
votes  and  make  out  and  seal  up  the  return,  and  that  it  correspon.ded 
with  the  above  statement  (p.  180).  Mr.  O'Connor  examined  one  of 
the  managers  (T.  B.  Curtis),  but  he  does  not  deny  tbe  correctness  of 
this  vote. 

ENTERPRISE. 

The  vote  as  returned  by  the  managers  of  this  precinct  waa : 

For  Mr.  Mackey 385 

For  Mr.  O'Connor 161 

This  return  is  established  by  Kobert  Simmons,  one  of  the  supervisors 
(p.  190).  He  testifies  that  tlie  Kepublicans  voted  an  open  ticket  until 
about  200  had  voted,  when  Mr.  Schaffer,  a  leading  Democrat,  objected, 
and  said  if  it  was  not  stopped  he  would  protest  the  election  and  the 
whole  box  would  be  thrown  out.  After  that  the  Republican  voters 
folded  their  tickets.  At  the  close  of  the  poll  there  was  an  excess  of 
139  ballots  in  the  box,  and  one  of  the  Democratic  managers  drew  out 
this  excess.    In  doing  so  he  drew  out  101  Eepublican  tickets  and  only 


570  DIGEST    OF    ELECTION    CASES, 

38  Democratic  tickets.  After  this  was  concluded  the  managers  can- 
vassed and  counted  the  votes.  Mr.  O'Connor  examined  the  Democratic 
supervisor  and  one  of  the  three  managers,  both  of  whom  corroborate 
the  correctness  of  the  vote  returned  after  drawing  out  the  139  ballots 
referred  to  above. 

,  fogle's. 

The  vote  as  returned  by  the  managers  of  this  precinct  was : 

For  Mr.  Mackey _„.  254 

For  Mr.  O'Connor 40 

This  vote  is  established  by  Nester  Curry,  one  of  the  supervisors,  who 
testifies  that  he  saw  the  managers  canvass  and  count  the  vote,  and  sign 
and  seal  the  return  (p  282).  This  is  corroborated  by  the  evidence  of  T. 
C.  Albergotti,  one  of  the  county  canvassers  (p.  291),  and  it  is  disputed 
by  no  one. 

FORT  MOTTE. 

The  vote  as  returned  by  the  managers  of  this  precinct  was: 

For  Mr.  Mackey 279 

For  Mr.  O'Connor 85 

This  vote  is  established  by  the  evidence  of  Benj.  Moultrie  (p.  279),  T. 
C.  Albergotti  (p.  291),  and  by  one  of  the  managers,  James  A.  Peterkin, 
and  disputed  by  no  one.  It  is  uncontradicted  that  the  Eepublicans 
voted  an  open  ticket,  showing  that  they  voted  but  one  ticket,  yet  at 
the  close  of  the  poll  there  was  an  excess  of  ten  tickets  in  the  box.  In 
drawing  out  this  excess  the  Democratic  managers  drew  out  9  Eepub- 
lican  tickets  and  1  Democratic. 

LEWISVILLE   (OE  SAINT  MATHBWS). 

The  vote  as  returned  by  the  managers  of  this  ijrecinct  was : 

For  Mr.  Mackey ^ 700 

For  Mr.  O'Connor 236 

This  return  is  established  by  J.  J.  Moore,  one  of  the  supervisors  (p. 
286),  and  by  T.  C.  Albergotti  (p.  291).  The  evidence  is  uncontradicted 
that  all  the  Republican  voters  came  to  the  ballot-box  with  an  open 
ticket  and  folded  it  up  in  the  presence  of  the  managers  (pp.  287,  628), 
showing  that  each  voted  but  one  ticket,  and  yet  at  the  close  of  the  poll 
a  large  excess  of  tickets  was  found  in  the  box.  There  were  forty -five 
packages  of  tickets  containing  more  than  one  ballot  (generally  from  3 
to  5  and  sometimes  as  high  as  7),  all  of  them  Democratic,  the  narrow 
tickets  being  folded  inside  of  the  larger  one  (p.  287).  On  the  demand 
of  the  Republican  supervisor  all  the  tickets  thus  found  in  each  pack- 
age were  destroyed  but  the  inside  one,  but  notwithstanding  this  there 
was  still  an  excess  found  in  the  box  of  52  ballots.  In  drawing  this  ex- 
cess out  the  manager  drew  out  40  Republican  tickets  and  ouly  12  Dem- 
ocratic. After  this  "i)urifi cation"  there  still  remained  the  vote  as  above 
returned  by  the  Democratic  managers. 

bookhardt's. 

The  vote  as  returned  by  the  managers  of  this  precinct  was : 

For  Mr.  Mackey 212 

For  Mr.  O'Connor 69 


MACKEY    VS.    O'CONNOR.  571 

The  above  vote  is  established  by  the  evidence  of  George  E.  Hart,  one 
of  the  supervisors,  and  corroborated  by  the  evidence  of  A.  Lathrop,  who 
was  cross-examined  by  Samuel  Dibble,  the  sitting  member.  The  man- 
agers of  the  election,  after  they  had  counted  the  ballots  as  above,  put 
the  ballot-box  into  the  hands  of  George  E.  Hart,  one  of  the  supervisors, 
for  delivery  to  the  county  canvassers ;  Hart  handed  it  over  to  Mr.  La- 
throp, who  took  it  to  the  board  of  county  canvassers,  but  the  board  de- 
clined to  receive  the  box,  and  refused  to  count  tbe  ballots  therein.  The 
managers  of  the  election  were  not  even  called  by  the  contestee  to  con- 
tradict the  result  of  the  vote  in  the  precinct  as  testified  to  by  Mr.  Hart, 
who  saw  them  count  it  as  above  on  the  evening  of  the  election,  and 
whose  return  is  also  in  evidence. 

This  is  a  brief  statement  of  the  number  of  votes  cast  and  canvassed 
at  these  eleven  polls  rejected  by  the  county  board  of  canvassers  of 
Charleston  and  Orangeburg  Counties.  It  is  true  that  Mr.  O'Connor  in 
his  answer  set  up  that  these  polls  were  thrown  out  because  "  threats, 
acts  of  intimidation,  and  violence  were  perpetrated  by  the  partisans  and 
supporters  of  Mr.  Mackey,"  "to  the  serious  interference  with  the  man- 
agers of  election  in  the  discharge  of  their  duties,  and  to  the  prevention 
of  a  free  and  fair  election,"  but  he  utterly  failed  to  establish  the  charges 
in  his  answer.  Not  a  single  manager  testifies  that  they  were  overawed 
and  forced  to  make  a  miscount ;  the  farthest  they  go  is  that  they  believe 
many  colored  men  would  have  voted  for  Mr.  O'Connor  if  they  had  been 
left  to  their  own  free  choice.  The  committee  find  that  every  allegation 
set  up  by  Mr.  O'Connor  for  the  rejection  of  these  polls  is  unsupported 
even  by  the  testimony  of  his  own  witnesses.  The  reports  of  the  con- 
tested-election cases  for  the  last  eighteen  years  do  not  show  a  more 
systematic  effort  to  override  the  will  of  the  people  as  expressed  at  the 
ballot-box  than  does  this  case.  Ballot-boxes  were  stuffed  in  the  in- 
terest of  Mr.  O'Connor,  and  when  the  excess  was  discovered  on  opening 
the  box,  the  drawing-out  process  always  resulted  in  the  interest  of  Mr. 
O'Connor.  A  whole  poll — Haut  Gap — was  reversed,  making  a  fraudu- 
lent change  of  over  two  thousand  votes  in  favor  of  Mr.  O'Connor,  and 
to  cap  the  climax  of  fraud  and  perjury  perpetrated  by  the  managers  of 
the  election — all  of  whom  were  Democrats — precinct  after  precinct  that 
had  given  Mr.  Mackey  majorities  was  thrown  out  by  the  county  can- 
vassers— all  of  whom  were  Democrats — until  a  false,  fraudulent,  and 
perjured  majority  was  exhumed  from  this  iniquity  of  5,272  in  favor  of 
Mr.  O'Connor. 

But  aside  from  this,  it  was  the  duty  of  the  county  canvassers  of 
Charleston  and  Orangeburg  to  have  gone  forward  and  canvassed 
the  vote  returned  to  them  from  these  11  precincts.  In  the  election 
laws  of  South  Carolina,  so  far  as  a  member  of  Congress  is  concerned, 
there  is  absolutely  nothing  authorizing  county  canvassers  to  pass  upon 
the  validity  of  an  election,  and  to  decide  whether  or  not  the  votes  there 
cast  are  to  be  counted  and  canvassed.  Such  is  the  effect  of  the  decision 
of  the  supreme  court  of  that  State,  ex  pa^-fe  Mackey  etal  vs.  Canville 
et  al.,  rendered  upon  an  appeal  taken  by  the  contestant  upon  an  appli- 
cation to  one  of  the  circuit  judges  for  the  writ  of  mandamus  to  compel 
the  county  canvassers  of  Charleston  to  count  the  votes  of  two  of  the 
polls  rejected  by  them.  Under  the  decision  of  the  supreme  court  the 
vote  of  the  eleven  polls  rejected  by  the  county  canvassers  of  Charleston 
and  Orangeburg  ought  now  to  be  added  to  the  vote  certified  by  the 
State  board  of  canvassers,  provided  the  vote  of  those  polls  is  established 
by  the  evidence  of  contestant.  In  the  opinion  of  the  committee,  the 
vote  of  each  of  these  polls  is  fully  established  by  the  testimony,  and 


572 


DIGEST  OF  ELECTION  CASES. 


there  is  nothing  vrhatever  in  the  testimony  of  contestee  to  invalidate 
the  election  of  any  one  of  them. 

By  making  the  necessary  correction  in  the  vote  of  Haut  Gap,  because 
of  the  fraudulent  change  in  the  vote  of  that  precinct,  and  by  adding 
the  vote  of  the  eleven  polls  rejected  by  the  county  canvassers  of  Charles- 
ton and  Orangeburg,  the  contestant  would  have  a  majority  of  879  votes, 
according  to  the  returns  made  by  the  managers  of  the  election,  as  will 
be  seen  by  the  following  table : 


M.P.       t:.w.M. 

O'Connor.      Mackey. 


Vote  ceitifled  and  declared  by  the  State  board  of  canrassers 

Deduct  tiie  vote  fraudulently  returned  by  the  county  canyassers  of  Charles- 
ton County  as  the  vote  of  Haut  Gap 


Add  the  correct  vote  of  Hant  Gap,  as  it  Tras  counted  and  returned  by  the 
managers  of  the  election  , 


Add  the  vote  of  the  following  polls,  which  the  county  canvassers  of  Charles- 
ton and  Orangeburg  refusea  to  count  and  canvass  as  required  by  law,  to 
wit : 

Calamus  Pond 

Strawberry 

Biggin  Church 

Enterprise 

Brick  Church 

Ten-Mile  Hill 

Black  Oak 

Fogle's 

Fort  Motte 

Lewisville 

Bookhardt's 


Total  vote  as  counted  and  returned  by  the  managers  of  the  election 


Majority  for  E.  W.  M.  Mackey  , 


17,569 
1,052 


16, 517 
46 


16,563 


119 
90 
63 

161 
16 
5 
11 
40 
85 

236 
69 


17,  458 


12,  278 
1,037 


13,  315 


511 

573 
380 
385 
732 
603 
393 
254 
279 
700 
212 


18,337 
17, 458 


879 


BALLOT-BOX  STUFFING. 


Although  this  majority  of  879,  shown  to  have  been  returned  by  the 
managers  of  the  elections  to  the  county  canvassers,  is  suflBcieut  to  en- 
title the  contestant  to  be  seated,  nevertheless  the  committee  cannot  re- 
frain from  calling  attention  to  the  fact  that  the  testimony  shows  that 
the  contestant  actually  received  a  very  much  larger  majority,  and  that 
it  was  reduced  to  879  by  a  uniform  system  of  ballot-box  stuffing — by 
causing  to  be  put  in  the  ballot-boxes  at  a  majority  of  the  polls  in  the 
Congressional  district  an  excess  of  votes  over  voters  on  the  poll-lists, 
and  then  by  drawing  out  a  number  of  ballots  equal  to  that  excess — an 
operation  by  which  the  vote  of  Mr.  Mackey  was  reduced,  and  the  vote 
of  Mr.  O'Connor  greatly  increased. 

In  reference  to  these  frauds  the  contestant  in  his  notice  of  contest 
(specification  2,  Kecord,  p.  1)  charged  that  at  certain  precincts  the  vote 
actually  cast  for  him  was  larger  and  the  vote  actually  cast  for  the  con- 
testee was  smaller  than  appeared  on  the  face  of  the  returns  made  by  the 
managers  of  the  election  at  those  precincts ;  that  the  difference  between 
the  vote  as  actually  cast  and  the  vote  as  returned  by  the  managers 
arose  from  the  fact  that  at  each  of  those  polls  numerous  ballots,  bear- 
ing contestee's  name,  were  fraudulently  placed  in  the  ballot-box  for  the 
purpose  of  creating  in  them  an  excess  of  votes  over  voters,  and  thereby 
compelling  the  managers  to  draw  out  and  destroy  the  excess  of  ballots 
thus  created,  in  order  to  reduce  the  number  of  ballots  in  the  box  to  the 


MACKEY    VS.    OCOXNOR. 


57iJ 


number  of  names  on  the  poll-list ;  that  in  drawing  out  of  the  box  at 
each  of  those  polls  the  excess  of  ballots  so  created,  numerous  ballots 
with  contestant's  name  thereon,  which  had  been  legally  vot^d,  were 
drawn  out  and  destroyed,  and  in  their  place  was  counted  a  correspond- 
ing number  of  ballots  with  contestee's  name  thereon  which  had  not 
been  legally  voted. 

Neither  in  the  answer  of  the  contestee,  nor  in  the  testimony  produced 
in  his  behalf,  is  there  any  denial  of  the  fact  that,  at  the  polls  referred 
to  by  the  contestant,  the  ballots  in  the  boxes,  upon  being  counted  at  the 
close  of  the  election,  were  found  to  be  largely  in  excess  of  the  number 
of  persons  recorded  on  the  poll-lists  as  having  voted  at  those  polls.  The 
extent  to  which  the  ballots  in  the  boxes  exceeded  the  number  of  names 
on  the  poll-lists  at  these  polls  is  indicated  in  the  following  table,  which 
exhibits,  according  to  the  testimony,  the  number  of  names  recorded  on 
the  poll-list  kept  at  each  poll  by  the  managers,  the  number  of  ballots 
found  in  the  box,  and  the  amount  of  the  excess  of  ballots  over  voters  ; 


Number  of 
names  on 
poll-list. 


Number  of 
ballots  in 
the  box. 


Excess  of 
ballots  over 
voters. 


CHABLESTOS  COUNTY. 

City  Hall 

Court-House 

Market-Hall 

Palmetto  E.  H 

Hope  E.  H 

Eagle  E.  H 

Washington  E.  H 

Marion  E.  H 

Ashley  E.H 

Niagara  E.H 

Camp  Ground 

Enterprise 

Twentv-two Mile  House 

Cross-  floads 

M  us  ter  House 

Mount  Pleasant 

Biggin  Church 

Piuopolis 

Saint  Stephen's 

Blackville 

Ben  Potter's 

Henderson's  Store 

ORAIfGKBUKO  COUMTT 

Orangeburg  C.H 

Branch  viUe 

Brown's 

Corbettsville 

Cedar  Grove , 

Connor's 

Fort  Motte 

Ayer"s 

Gleaton's 

Le  wisville 

Easterlin's 

Rowesville 

Jamison's 

Bull  Swamp 

Zeigler's 

Washington  Seminary 

Bookhardt's 

CLABEKDOK  COUNTY. 

Fulton 

Witherspoon's 

Jordan 

Manning 


1,729 

628 

1,125 

1,501 

1,218 

1,433 

458 

1,141 

912 

547 

870 

546 

599 

222 

723 

826 

467 

216 

532 

241 

163 

184 


16, 281 


1,093 
395 
156 
488 
304 
199 
377 
388 
417 
936 
449 
238 
406 
384 
290 
465 
281 


7,266 


354 
476 
648 
634 


1,934 

763 

1,196 

1,568 

2, 289 

2,002 

837 

1,798 

1,150 

642 

889 

685 

604 

231 

754 

1,016 

481 

255 

600 

248 

222 

219 


20,383 


1,165 
409 
174 
582 
332 
230 
387 
417 
436 
988 
556 
264 
477 
554 
394 
544 
298 


8,207 


502 

552 

906 

1,032 


205 

135 

71 

67 

1,071 

569 

379 

657 

238 

95 

19 

139 

5 

9 

31 

190 

14 

39 

68 

7 

59 

35 


4,102 


72 
14 
18 
94 
28 
31 
10 
29 
19 
52 
107 
26 
71 
170 
104 
79 
17 


941 


148 

76 

258 

399 


574 


DIGEST  OF  ELECTION  CASES. 


Number  of 
narae!«  on 
poll-list. 

Number  of 
ballots  in 
the  box. 

E  s  c  e  8  8  of 
ballots  over 
voters. 

CLAKENDON  COUNTY— Continued. 

377 
1,043 

455 

1,288 

78 

245 

3,532 

4,736 

1,204 

Recapitulation 

16, 281 
7,266 
3,532 

20,883 
8,207 
4,736 

4  102 

941 

1,204 

27,  079 

33,  326 

6,247 

This  large  excess,  occurring,  as  it  did,  at  over  two-thirds  of  the  polls 
in  the  district,  warrants  the  conclusion  that  the  excess  at  those  polls 
was  not  the  result  of  mere  accident  or  local  manipulation,  but  of  a  well- 
defined  and  matured  plan. 

It  is  in  evidence  that  the  Eepublican  voters  throughout  the  district, 
in  accordance  with  the  advice  publicly  given  them  (and  at  one  meeting 
in  the  presence  of  Mr.  Dibble,  the  sitting  member),  by  the  contestant 
and  his  partisan  supporters,  went  to  the  polls  with  open  tickets,  exhib- 
iting them  to  the  managers  and  supervisors  so  that  they  could  see  that 
they  each  had  but  one  ballot,  foldiugrthem  in  the  presence  of  these  offi- 
cers, that  they  might  be  satisfied  that  they  cast  but  one  vote.  In  addi- 
tion to  this  thee[vidence  discloses  the  fact  that  at  every  precinct  through- 
out the  district  the  three  managers  and  clerk,  without  exception,  were 
the  political  partisans  and  supporters  of  Mr.  O'Connor.  The  only  offi- 
cer present  of  the  same  political  faith  with  Mr.  Mackey  was  the  super- 
visor. If  he  did  not  closely  watch  the  voters  as  they  approached  the 
poUs,  and  supervise  the  clerk  whose  duty  it  was  to  take  down  their 
names,  it  was  possible  for  the  clerk  to  add  names  to  the  poll-list  who 
had  not  voted.  While  thus  employed  it  was  possible  for  one  of  the 
three  managers  to  manipulate  the  ballot-box,  which  actually  was  done 
at  45  precincts,  and  6,247  votes  stuffed  into  these  45  ballot-boxes  by  the 
managers  thereof,  or  by  their  connivance.  To  assume  that  this  was 
done  by  the  "peaceable  and  quiet  colored  men"  who  supx^orted  Mr. 
Mackey,  in  the  presence  of  these  managers  of  opposite  political  faith,  is 
to  attribute  a  degree  of  stupidity  on  the  part  of  these  Democratic  man- 
agers, and  of  courage  on  the  part  of  these  "peaceable  and  quiet  colored 
men"  who  supported  Mr.  Mackey  which  is  not  warranted  by  the  evi- 
dence in  this  case.  The  very  violence  of  the  presumption  is  its  re- 
joinder. 

Without  the  connivance  of  these  managers  of  the  election  it  is  very 
evident  that  the  ballot-boxes  could  not  have  been  stuffed  to  the  extent 
that  they  were ;  and  it  is  equally  as  evident  that  without  their  active 
co-operation  the  contestee  could  not  have  benefited  to  the  extent  that 
the  testimony  proves  he  did,  by  the  process  of  drawing  out  and  destroj^- 
ing  surplus  ballots. 

The  evidence  shows  that  two  kinds  of  Democratic  ballots  were  gen- 
erally used  at  every  poll,  one  larger  than  the  other,  and  the  smaller  one 
as  a  rule  printed  on  fine  tissue  paper,  so  that  it  was  possible  to  fold  a 
number  of  the  smaller  ballots  within  the  folds  of  the  larger  one.  In 
the  boxes  at  many  polls  ballots  bearing  the  name  of  Mr.  O'Connor  were 
frequently  found  inclosed  in  ballots  also  bearing  his  name  and  folded 
together  in  packages  of  2,  3,  4,  and  upwards  as  high  as  23. 


MACKEY   VS     O'CONNOR. 


575 


A  further  proof  that  the  excess  of  ballots  found  in  the  ballot-boxes 
was  put  there  by  the  partisans  and  supporters  of  Mr.  O'Connor  is  af- 
forded by  the  fact  that  at  several  polls  the  number  of  Democratic  tickets^ 
with  the  name  of  the  contestee  thereon,  found  in  the  box  was  actually 
greater  than  the  whole  number  of  persons  who  voted  at  those  particular 
polls.    Such  was  the  case  at  the  following  polls  in  Charleston  County : 


u  a 

<M 

es 

h"^ 

9.  o  • 

<S 

s^s 

32 

III 

^ 
^ 

Iz; 

1,683 

2,218 

589 

458 

177 

163 

o  v 


a  s-  O 
H  o  t» 


Hope  Engine-house 

Washington  Engine-house 
Ben  Potter's 


465 

131 

14 


A  EEMARKABLE  DOCUMENT. 

In  accounting  for  this  systematic  pollution  of  the  ballot-box  the  com- 
mittee is  not  left  to  inference.  It  is  in  evidence  that  the  chief  super- 
visor of  the  State  instructed  the  precinct  supervisors  to  set  forth  in  their 
reports  the  number  of  ballots,  if  any,  found  in  excess  of  the  names  on 
the  poll-list,  and  to  designate  the  character  of  the  ballots  drawn  out 
and  destroyed  by  reason  of  such  excess.  The  chairman  of  the  Demo- 
cratic executive  committee  of  the  State,  assuming  upon  which  party 
the  loss  was  to  fall  by  the  process  of  drawing  out  and  destroying  bal- 
lots, and  to  prevent,  if  possible  the  evidence  from  being  obtained  of 
the  extent  to  which  the  Democratic  candidates  should  profit  by  that 
process,  issued  the  following  circular,  dated  seven  days  prior  to  the  elec- 
tion: 

Rooms  of  the  State  Democratic  Executive  Committe?:, 

CohimUa,  S.  C,  October  27, 1880. 

To , 

County  Chairman: 

Dear  Sir  :  The  attention  of  the  State  executive  committee  has  been  called  to  the 
instructions  issued  by  Chief  Supervisor  Poinier  to  the  supervisors  of  election  in  this 
State.  These  supervisors  are  directed  to  report  "  the  number  of  ballots  drawn  out  of 
the  ballot-box  and  destroyed  by  the  managers  of  election,  because  of  the  excess  of 
votes  over  names  on  the  poll-list " ;  also  the  number  of  such  ballots  that  "  hore  the 
names  of  liepublican  candidates  "  and  the  number  which  bore  the  names  of  the  Dem- 
ocratic candidates  and  Greenback  candidates. 

The  instruction  to  report  the  character  of  the  ballots  drawn  out  and  destroyed  is 
unauthorized  and  illegal.  The  State  election  law,  by  which  alone  you  are  governed, 
requires  (see  compilation  of  Election  Laws,  section  12)  that  "  if  more  ballots  shall  be 
found  on  opening  the  box  than  there  are  names  on  the  poll-lists,  *  *  »  one  of  the 
managers  or  the  clerk,  without  seeing  the  ballots,  shall  draw  therefrom  and  immediately 
destroy  as  many  ballots  as  there  are  in  excess  of  the  number  of  names  on  the  poll-list. "^ 
You  will,  therefore,  instruct  the  managers  of  election  throughout  your  county  at 
once  that  they  must  not  alloiv  the  supervisors  to  see  or  inspect  any  ballots  drawn  from  the 
box  in  excess  of  the  number  of  names  on  the  poll-list,  in  order  to  ascertain  for  whom 
such  ballots  were  cast.  The  ballots  must  be  drawn  without  being  seen,  and  must  be 
immediately  destroyed,  as  the  law  directs. 

By  order  of  the  committee. 

JOHN  BRATTON, 

Chairman. 

The  positive  language  in  which  the  chairman  of  the  Democratic  party 
of  each  county  is  commanded  by  the  chairman  of  the  State  committee 
to  instruct  the  managers  of  election  in  their  respective  counties  shows 
how  completely  the  managers  of  election  were  under  the  control  of  the 
Democratic  executive  committee  of  the  State.    If  the  partisans  of  Mr. 


576 


DIGEST  OF  ELECTION  CASES. 


O'Connor  desired  a  fair  election,  why  this  anxiety  on  the  part  of  the 
managers  of  his  party  to  obliterate  the  evidences  of  their  fraud  and  seek 
to  make  it  impossible  to  discover  the  effect  of  the  same? 

Wherever  the  ballots  in  the  boxes,  upon  being  counted  at  the  close  of 
the  election,  were  found  to  exceed  the  names  on  the  poll-lists,  all  the 
ballots  were  returned  to  the  boxes  and  the  managers  drew  therefrom 
and  destroyed  a  number  of  tickets  equivalent  to  the  excess,  in  order  to 
make  the  number  of  votes  correspond  with  the  number  of  voters  on  the 
poU-liets  as  kept  by  the  clerk.  Owing  to  the  great  difference  in  the  text- 
ure of  the  Democratic  and  Eepublican  ballots,  the  person  drawing  out 
the  excess  could  easily  distinguish  the  difference  between  the  two.  The 
table  which  here  follows,  and  which  is  abundantly  supported  by  the 
evidence,  is  the  best  proof  of  this  fact : 


2S 


«^ 


CHARLESTON  COUNTY 

Court- House 

Market  Hall 

EajileE.  H 

Marion  E.  H 

Niagara  E.  H 

Eutei-prise ■. 

Twenty -two-Mile  House  — 

Muster  House 

Biggin  Church 

Saint  Stephen's 

Blackville 

Camp  Ground 

Croas-Roads 

OEAMGEBURQ  COUKTY, 

Orangeburg  Court-House 

Branchvnie 

Brown's 

Cedar  Grove 

Connor's 

Fort  Motte 

Ayer's 

Lewisville 

Easterlin's 

Eowesville 

Jamison's 

Bookhardt 

CLARENDON  COXnJTT. 

Fulton 

Witherspoon 

Jordan 

Packs yiUe  . . ". 

Total 


135 

61 

550 

500 

79 

101 

5 

30 

13 

63 

6 

19 

7 


63 
13 
18 
22 
31 
9 
23 
40 
100 
24 
61 
16 


106 
47 

247 
65 


2,454 


19 

157 

16 

38 


26 

33 

65 

76 

87 

191 

131 

109 

175 

102 

105 

207 

208 


230 
213 
236 
260 
238 
280 
220 
287 
217 
244 
225 
276 


297 
325 
329 
337 


383 


At  seven  of  the  above-named  polls  it  will  be  perceived  that  not  a  sin- 
gle Democratic  ticket  was  drawn  out,  and  at  six  others  only  one  Demo- 
cratic ticket  at  each.  It  is  true  that  at  three  polls  in  Charleston  County 
not  included  in  the  above  list,  to  wit,  the  City  Hall,  Washington  Engine- 
house,  and  Ben  Potter's,  more  Democratic  than  Eepublican  tickets  were 
drawn  out,  and  that  at  several  other  polls  the  number  of  Republican 
tickets  drawn  out  did  not  greatly  exceed  the  number  of  Democratic 
tickets  drawn  out,  but  this  arose  from  the  fact  that  at  such  polls  more 
Democratic  ballots  had  been  stuffed  into  the  boxes  than  were  necessary 


MACKEY    VS.    O  CONNOR. 


577 


to  accomplisli  the  purpose  intended,  and  consequently  the  excess  was 
almost  equal  to,  and  in  two  instances  even  greater  than,  the  number  of 
Republican  tickets  in  those  boxes,  as  at  the  Washington  Engine-house, 
where  there  were  only  245  Republican  tickets  in  the  box,  while  the  ex- 
cess was  379,  and  at  Ben  Potter's,  where  there  were  only  45  Republican 
tickets  in  the  box,  while  the  excess  was  59. 

Every  Republican  vote  drawn  out  was  a  loss  of  one  to  Mr.  Mackey 
and  a  gain  of  one  to  Mr.  O'Connor.  On  the  other  hand,  by  the  drawing 
out  of  a  Democratic  ticket  Mr.  O'Connor  suffered  no  loss,  because  the 
excess  being  created  by  i)lacing  Democratic  tickets  in  the  box,  whenever 
a  Democratic  ticket  lawfully  voted  was  drawn  out  one  of  the  Democratic 
tickets  illegally  voted  was  counted  in  its  place,  so  that  the  contestee's 
vote  was  not  reduced  thereby. 

THE   TRUE  STATE  OF  THE  POLL. 

In  order,  therefore,  to  ascertain  the  true  state  of  a  poll  it  is  only  nec- 
essary to  add  to  the  vote  returned  for  the  contestant  at  that  poll  the 
number  of  Republican  ballots  drawn  out  and  destroyed,  and  to  deduct 
from  the  vote  returned  for  the  contestee  a  like  number,  making,  of 
course,  such  additional  corrections  as  the  testimony  warrants. 

Acting  upon  this  rule,  the  committee  find  that  the  correct  vote  at 
those  polls  where  the  ballot-boxes  were  stuffed,  and  Republican  tickets 
drawn  out  and  Democratic  tickets  counted  in  their  j^lace,  is  as  follows : 


Vote  returned. 


O'Connor.  !    Mackey. 


Vote  corrected. 


O'Connor. 


Mackey. 


CHARLESTON  COLXTY. 


City  HaU,  ward  1 

Court-house,  ward  2 

Market  Hall,  ward  3 

Palmetto  E.  H. ,  ward  3 

Hope  E.  H.,  ward  4 

Eagle  E.H.,  ward  5 

Washington  E.  H.,  ward  6. 

Marion  E.  H..  ward  6 

Ashley  E.  H.,  ward  7 

Kiagara  £.  H.,  ward  8 

Enteri)ri3e 

Twenty -two-mile  house 

Muster  House 

Biggin  Church 

Pinopolis 

Saint  Stephen's 

Blackville 

Ben  Potter's 

Henderson's 


ORAKOBBUBG  COUSTY. 


Orangeburg  Court-House. 

Br.anchTille 

Brown's 

Corbettsville 

Cedar  Grove 

Connor's 

Fort  Motte 

Ayer's 

Lewisville 

Easterlin's 

Rowesville 

Jamison's 

Bull  Swamp 

Zeigler's 

Washington  Seminary 

Bookhardt 


1,354 
279 

1,018 
670 

1,200 

1,063 

391 

835 

720 

348 

161 

145 

71 

63 

150 

232 

139 

129 

99 


9,067  I 


419 
245 

96 
296 
199 
116 

85 
241 
236 
337 
111 
154 
283 
199 
2S5 


3,371 


375 
347 
476 
465 
5 
364 

66 
299 
198 
196 
385 
443 
630 
380 

64 
286  . 

97 

34 ; 

85 ; 


5,195 


651 
150 

60 
190 
105 

S3 
279 
147 
700 
112 
127 
252 

98 

91 
178 
212 

3,435 


1,277 
154 
985 
556 
608 
513 
212 
335 
601 
269 

60 
129 

41 

50 
133 
169 
133 
118 

91 


6,434 


356 

216 

78 

232 

177 

85 

76 

194 

196 

237 

87 

93 

193 

147 

238 

53 

2,658 


452 

472 

509 
526 
597 
914 
245 
799 
317 
275 
486 
459 
660 
393 
81 
349 
103 
45 
93 


7,775 


714 
163 
78 
240 
127 
124 
288 
170 
740 
222 
151 
313 
188 
143 
225 
228 

4,114 


H.  Mis.  35- 


-37 


578 


DIGEST    OF    ELECTION    CASES. 


Vote  returned. 


Vote  corrected. 


O'Connor.      Mackey.   I  O'Connor,  i    Mackey. 


CLARENDON  COUNTY, 

Fulton 

Witherspoon's 

Jordan 

Manning 

PacksTille 

Calioun 

Becapitulation. 

Charleston  County 

Orangeburg  County 

Clarendon  County 


161 
295 
433 
459 
240 
409 


1,997 


9,067 
3,371 
1,997 


14,435 


193 

180 
215 
174 
137 

404 


1,303 


5,195 
3,435 
1,303 


9,933 


55 
248 
186 
220 
135 
171 


1,015 


6,434 
2,658 
1,015 


10, 107 


299 
227 
462 
413 
222 
532 


2,155 


7,735 
4,114 
2,155 


14,004 


mackey's  keal  majority. 


Correcting,  in  accordance  with  the  above  tabulated  statement,  the  ag- 
gregate vote  of  the  district  as  it  appears  upon  the  face  of  the  returns 
made  by  the  managers  of  the  election  : 


O'Connor. 

Mackey. 

17.458 
14,  435 

18  337 

Deduct  Tote  returned  from  those  polls  where  the  ballots  in  the  boxes  ex- 

9,933 

Add  the  vote  of  those  polls  as  corrected 

3.023 
10, 107 

8,404 
14  004 

13, 130 

22,  408 
13, 130 

Majority  for  Mackey 

9  278 

The  committee  ther  fore  recommend  the  adoption  of  the  following 
resolutions : 

Resolved,  That  the  Hon.  Samuel  Dibble  is  not  entitled  to  hold  the  seat 
now  occupied  by  him  in  this  Houseas  a  Eepresentative  from  the  second 
district  of  South  Carolina  in  the  Forty-seventh  Congress. 

Resolved,  That  the  Hon.  E.  W.  M.  Mackey  was  duly  elected  as  a  Eepre- 
sentative from  the  second  Congressional  district  of  South  Carolina  in 
the  Forty-seventh  Congress,  and  is  entitled  to  a  seat  in  this  House. 


April  12, 1882. — Mr.  MoiJLTON,fi'om  the  Committee  on  Elections,  sub 

mitted  the  following 

VIEWS  OF   THE   MINORITY: 

Election  contest  in  second  district  of  South  Carolina. 

The  undersigned  members  of  the  Committee  on  Elections  dissent 
from  the  views  expressed  by  the  majority  of  the  committee,  both  in  re- 
gard to  the  relation  of  Samuel  Dibble,  the  sitting  member,  to  the  case 


MACKEY    VS.    O'CONNOR.  579 

of  E.  NV.  ]M.  Mackey  vs.  M.  P.  O'Connor,  and  also  in  regard  to  the 
authenticity  and  genuineness  of  the  depositions  in  the  said  case. 

In  view  of  the  fact  that  the  circumstances  present  several  novel  feat- 
ures, it  seems  to  us  that  great  care  should  be  exercised  in  its  consid- 
eration, to  the  end  that  every  determination  made  therein  should  become 
a  sound  precedent  for  future  adjudications. 

The  following  are  a  few  of  the  leading  facts  in  the  case : 

In  ^^ovember,  1880,  E.  W.  M.  Mackey  and  M.  P.  O'Connor  were  op- 
posing candidates  for  Congress  in  the  second  Congressional  district  of 
South  Carolina,  and  as  the  result  of  the  election  then  held  M.  P.  O'Con- 
nor was  declared  elected  by  the  State  board  of  canvassers,  and  received 
the  usual  certificate  of  such  election,  which  was  duly  filed  with  the  Clerk 
of  the  House  of  Representatives.  Mr.  Mackey  contested  the  election  of 
Mr.  O'Connor  in  the  usual  form,  and  in  the  taking  of  testimony  in 
such  contest,  by  an  agreement  of  which  both  parties  availed  themselves, 
all  limitations  as  to  time  were  expressly  waived,  so  that  the  taking  of 
the  testimony  was  protracted  over  a  much  longer  period  than  the  term 
allowed  by  the  statute,  and  before  the  taking  of  Mr.  O'Connor's  testi- 
mony was  completed  he  died,  on  April  26,  1881. 

On  May  23, 1881,  the  governor  of  South  Carolina,  in  accordance  with 
the  provisions  of  the  Constitution  of  the  United  States,  issued  his  writ 
of  election  to  fill  the  vacancy  in  the  representation  in  Congress ;  and  at 
the  election  held  thereunder,  on  June  9, 1881,  Samuel  Dibble  was  elected, 
receiving  his  credentials  June  22,  1881,  and  the  same  being  filed  with 
the  Clerk  of  the  House  of  Representatives  on  June  25,  1881. 

Mr.  Mackey,  the  contestant  of  the  late  Mr.  O'Connor,  did  not  serve 
any  notice  of  contest  of  Mr.  Dibble's  election ;  but  proceeded  after  the 
death  of  Mr.  O'Connor,  and  before  the  election  of  Mr.  Dibble,  in  taking 
testimony  in  the  case  of  Mackey  vs.  O'Connor;  and  the  record  as  now 
filed  and  printed  embraces  testimony  on  both  sides  so  taken  after  Mr. 
O'Connor's  death  and  before  Mr.  Dibble's  election. 

On  December  5,  1881,  the  House  met,  and  Mr.  Dibble,  on  the  call  of 
the  roll,  presented  himself  to  be  sworn.  Objection  was  made  by  a  mem- 
ber of  the  House,  who  stated  to  the  House  the  general  circumstances  of 
the  case,  and  after  calling  the  attention  of  the  House  to  the  fact  that 
Mr.  Mackey  had  served  no  notice  of  contest  upon  Mr.  Dibble,  offered  the 
following  resolution,  viz : 

Besohed,  That  tlie  certificate  of  election  presented  by  the  Hon.  Samuel  Dibble,  to- 
gether with  the  memorial  and  protest  and  all  other  papers  and  testimony  taken  in  the 
case  of  the  contest  of  E.  W.  M.  Mackey  vs.  M.  P.  O'Connor,  now  on  file  with  the  Clerk 
of  this  House,  be,  and  the  same  are  hereby,  referred  to  the  Committee  on  Elections, 
when  appointed,  with  instructions  to  report  at  as  early  a  day  as  practicable  whether 
any  vacancy  as  alleged  in  the  certificate  existed,  and  as  to  the  prima  facie  right  or 
the  final  right  of  said  claimants  to  the  seat  as  the  committee  shall  deem  proper;  and 
neither  claimant  shall  be  sworn  until  the  committee  report. 

"Whereupon  the  House,  after  discussion,  laid  the  resolution  on  the 
table ;  and  also  laid  on  the  table  a  motion  to  reconsider  its  vote  thereon. 

Mr.  Dibble  then  presented  himself  at  the  bar  of  the  House,  and  was 
sworn,  without  further  objection,  and  from  that  time  until  December  21, 
1881,  occui)ied  his  seat  as  a  member  of  the  House  without  challenge  or 
dispute. 

^  I. 

Upon  grounds  which  will  be  hereinafter  explained  the  undersigned 
conclude  that  testimony  in  the  contest  between  Mackey  and  O'Connor 
is  inadmissible  as  against  Mr.  Dibble  j  that  Mr.  Dibble  is  not  to  be  con- 


580  DIGEST    OF    ELECTION    CASES. 

eluded  by  auj'  allegations,  proofs,  stipulations,  waivers,  or  laches  made 
or  incurred  by  Mr.  O'Connor,  or  by  anybody  else,  in  the  case  of  ^lackey  vs. 
O'Connor,  or  in  any  other  case  to  which  Mr.  Dibble  was  not  a  party. 
But  if  any  testimony  taken  in  that  case  could  be  lawfully  considered  in 
the  adjudication  of  Mr.  Dibble's  right  to  the  seat  which  he  occupies,  we 
think  there  are  insuperable  objections  to  the  record  of  the  case  of  Mackey 
-vs.  O'Connor,  as  filed  with  the  Clerk  of  the  House  of  Representatives, 
and  as  printed  by  order  of  the  committee. 

Simply  stating  the  fact,  which  appears  on  inspection  of  the  dates  of 
depositions  and  other  papers,  that  at  the  time  of  the  death  of  Mr. 
O'Connor  the  testimony  in  his  behalf  had  not  been  completed,  and  sub- 
mitting that  as  a  matter  of  law  the  contestant,  E.  W.  M.  Mackey,  could 
not,  by  any  process  known  to  the  statute,  during  the  period  after  Mr. 
O'Connor's  death  and  before  Mr.  Dibble's  election,  complete  the  testi- 
mony in  a  cause  in  such  unfinished  condition,  by  an  agreement  with 
any  person  or  persons  whomsoever,  we  come  to  the  still  more  serious 
objections  applicable  to  the  record. 

The  sitting  member,  Mr.  Dibble,  without  waiving  his  protest  to  the 
whole  proceeding  previously  made,  submitted  to  the  committee  certain 
affidavits  affecting  the  integrity  of  the  testimony  as  a  whole,  and  re- 
quested of  the  committee  an  investigation  of  the  matter,  alleging  that 
there  were  other  witnesses  who  were  cognizant  of  the  facts  alleged, 
whose  testimony  he  could  not  obtain  without  the  order  of  the  House, 
as  they  were  persons  who  were  politicallj'  friendly  to  Mr.  Mackey,  the 
contestant,  and  were  unwilling  to  give  evidence  of  what  they  knew. 
Mr.  Dibble  also  requested  leave  of  the  subcommittee  to  whom  the  case 
of  Mackey  vs.  O'Connor  was  referred  to  permit  him  to  occupy  twenty 
or  thirty  minutes  of  their  time  in  exhibiting  to  them  certain  erasures 
and  interlineations  of  the  testimony  apparent  on  the  face  of  the  manu- 
script, which  he  claimed  would  of  themselves  furnish  intrinsic  evidence 
that  material  changes  had  been  made  in  the  testimony,  and  in  some 
instances  in  the  handwriting  of  the  contestant  Mr.  Mackey  himself. 
But  the  majority  of  the  subcommittee  declined  to  i^ermit  Mr.  Dibble  to 
exhibit  any  of  the  said  alterations  of  testimony,  and  refused  to  inspect 
the  same. 

In  connection  with  this  subject  let  us  consider  a  few  facts  which  are 
not  matter  of  dispute,  but  are  admitted  by  the  contestant. 

By  virtue  of  an  agreement  between  Mr.  Mackey,  the  contestant,  and 
Mr.  Chisolm,  who  was  Mr.  O'Connor's  attorney,  a  large  portion  of  the 
testimony  was  first  taken  in  short-hand  by  a  stenographer,  Mr.  Hogarth, 
who  was,  so  far  as  the  testimony  for  Mr.  Mackey  was  concerned,  also 
employed  by  him  as  his  notary  public.  This  testimony  was  transcribed 
by  Mr.  Hogarth  in  his  own  handwriting  from  his  stenographic  notes,  and 
delivered  to  Mr.  Mackey,  the  contestant.  Mr.  Mackey  employed  C.  Smith 
and  Gr.  M.  Magrath  to  rewrite  the  testimony  from  the  sheets  furnished 
liim  by  the  notary,  and  also  rewrote  a  large  part  of  the  testimony  with 
his  own  hand.  Certain  depositions,  after  being  so  rewritten,  Mr.  Mackey 
submitted  to  the  witnesses  for  such  corrections  as  they  saw  fit  to  make 
in  their  testimony,  and  in  several  instances  witnesses  did  make  such 
alterations.  In  one  instance,  a  witness,  after  reading  the  deposition  so 
rewritten,  refused  to  sign  it,  on  the  ground  that  it  was  not  as  he  had 
sworn;  but  the  contestant,  Mr.  Mackey,  and  himself  disagreed  as  to  the 
matter,  and  the  deposition,  as  rewritten  by  C.  Smith,  was  forwarded 
without  the  witness's  signature,  in  the  shape  which  the  witness  had  re- 
pudiated. Xoue  of  the  testimony  so  rewritten  was  compared  at  the 
time  with  the  stenographic  notes  of  the  stenographer,  who  certified  the 


MACKEY    VS.    O  CONNOR.  581 

rewritten  depositions  without  such  comparison,  omitting  from  his  cer- 
tificates, however,  the  allegation  that  the  depositions  were  written  out 
in  his  presence ;  and  the  contestant  admitting  that  the  depositions  so 
certified  were  not  written  out  in  the  presence  of  the  officer,  as  the  stat- 
ute requires,  with  the  exception  of  three  or  four  depositions. 

The  foregoing  are  facts  about  which  there  is  no  dispute  whatever. 
The  contestant  not  only  does  not  deny  but  attempts  to  justify  them. 

But  the  affidavits  of  E.  H.  Hogarth,  the  notary  public,  and  of  C. 
Smith,  who  was  one  of  the  copyists  employed  by  Mr.  Mackey,  and  who, 
as  the  printed  record  shows,  was  the  first  witness  examined  by  Mr. 
Mackey  in  his  contest,  and  was  one  of  the  Republican  supervisors  at 
the  election  of  November,  1880,  exhibits  a  still  more  startling  and  re- 
markable career  through  which  the  testimony  on  file  has  passed  in  get- 
ting to  the  Clerk  of  the  House. 

We  annex  their  affidavits,  together  with  others  corroborative  of  the 
same,  entire : 

Affidavit  of  E.  M.  Hogarth. 

State  of  Georgia, 

Richmond  County : 

Personally  appeared  tefore  me,  a  notary  public  in  and  for  the  county  of  Richmond, 
E.  H.  Hogarth,  who,  being  sworu,  says  that  he  was  a  resident  of  the  city  of  Charles- 
ton, State  of  South  Carolina,  during  the  year  1881  up  to  the  30th  of  September. 
That  dej)onent  held  the  office  of  notary  public  during  said  time,  and  was  a  stenogra- 
pher by  profession.  That  he  was  employed  by  E.  W.  M.  Mackey,  esq.,  as  stenogra- 
pher and  notary  public  in  the  contest  between  E.  W.  M.  Mackey  and  M.  P.  O'Connor 
for  a  seat  in  the  Forty-seventh  Congress  of  the  United  States,  and  that  deponent  acted 
as  stenograplier,  and  sometimes  notary  public,  in  Orangeburg  County,  on  behalf  of 
the  Hon.  M.  P.  O'Connor.  That  deponent  took  the  testimony  on  the  part  of  E.  W.  M. 
Mackey,  esq.,  in  the  counties  of  Charleston,  Orangeburg,  and  Clarendon,  with  the  ex- 
ception of  one  or  two  depositions.  That  all  of  the  testimony  so  taken  by  deponent 
as  stenographer  was  transcribed  from  his  stenographic  notes  in  deponent's  own  hand- 
writing, and  testimony  taken  on  behalf  of  E.  W.  M.  Mackey,  esq.,  was  turned 
over  to  him,  in  deponent's  own  handwriting,  and  such  taken  ou  behalf  of  the  Hon. 
M.  P.  O'Connor  was  turned  over,  in  deponent's  own  handwriting,  to  Robert  Chisolm, 
jr.,  esq.  This  ended  his  (deponent's)  connection  with  said  testimony,  except  that 
afterward,  at  various  times,  he  (deponent)  signed  certificates  which  were  tendered  to 
deponent  by  E.  W.  M.  Mackey,  esq.,  and  also  jurats  at  the  foot  of  dispositions ;  these 
deponent  signed  without  comparison  with  his  said  stenographic  notes,  taking  it  for 
granted  that  said  testimony  was  the  same  as  furnished  by  deponent  to  said  E.  W.  M. 
Mackey,  esq.  That  the  said  certificates  were  often  presented  to  deponent  for  signa- 
ture by  said  E.  W.  M,  Mackey,  esq,,  when  deponent  was  otherwise  employed,  and 
that  deponent  did  not  have  his  stenograi)hic  notes  at  hand  when  he  so  certified  said 
testimony. 

That  deponent  also  certified  the  testimony  take  on  behalf  of  Hon.  M.  P.  O'Connor 
in  instances  where  deponent  acted  as  notary  public. 

That  deponent  did  not  forward  any  of  said  testimony  to  the  Clerk  of  the  House  of 
Representatives,  but  turned  same  over  to  the  respective  parties  named  above,  and  de- 
ponent knows  nothing  of  his  personal  knowledge  concerning  the  forwarding  of  the 
same. 

E.  H.  HOGARTH. 

Sworn  to  and  subscribed  before  me  this  17th  day  of  February,  1882. 

[SEAL.1  WM.  K.  MILLER, 

Notary  Puilic,  Richmond  County,  Georgia. 

Affidavit  of  C.  Smith. 

State  of  South  Carolina, 

Charleston  County : 
Before  me  personally  came  C.  Smith,  in  response  to  a  summons  to  testify  as  to  cer- 
tain matters  in  a  contest  entitled  E.  W.  M.  Mackey  ra.  M,  P.  O'Connor,  and  who,  being 
duly  sworn,  says  I  was  employed  by  E,  W.  M.  Mackey  to  write  out  the  testimony 
taken  in  his  behalf  in  the  contest  between  himself  and  Mr.  O'Connor  for  a  seat  in  the 
Forty-seventh  Congress ;  this  writing  was  done  at  the  house  of  Colonel  Mackey,  and 


582  DIGEST    OF    ELECTION   CASES. 

at  tlie  United  States  court-house,  and  at  my  room.  The  body  of  testimony  was  in  the 
handwriting  of  E.  H.  Hogarth,  stenograiiher  and  notary  public,  and  there  were  in- 
terlineations, erasures,  and  portions  of  the  original  sheets  were  cut  out  and  other 
sheets  substituted,  and  sometimes  left  out  entirely ;  that  sometimes  nearly  a  whole 
I)age  was  struck  out  by  drawing  a  line  across  it ;  that  the  interlineations  were  in  the 
handwriting  of  E.  W.  M.  Mackey ;  that  the  copying  made  by  me  omitted  the  erasures 
and  inserted  the  interlineations;  that  sometimes  whole  pages  of  this  testimony  in 
the  handwriting  of  Colonel  E.  W.  M.  Mackey  would  be  inserted,  and  of  which  there 
was  no  original  in  the  handwriting  of  Mr.  Hogarth,  the  notary  public,  that  I  saw  ; 
that  sometimes  when  I  returned  the  originals  and  my  copy  of  the  same,  Colonel 
Mackey  destroyed  the  originals  by  placing  them  in  a  stove,  or  destroying  them  by 
tearing  them  up ;  that  in  some  instances  the  copy  made  by  me  was  returned  interlined, 
and  I  made  fresh  copy  with  such  corrections;  the  interlineations  last  mentioned  were 
also  in  the  handwriting  of  Colonel  E.  W.  M.  Mackey ;  that  the  notary  public,  Mr. 
Hogarth,  placed  his  seal  and  signature  to  the  testimony  as  it  was  handed  to  him,  with- 
out making  any  comparison  with  the  originals,  as  in  many  instances  as  before  stated, 
the  originals  had  been  destroyed,  and  also  without  making  any  comparison  with  his 
short-hand  notes ;  that  is,  in  every  case  in  which  I  was  present  my  impression  is  that 
I  saw  him  sign  nearly  all  of  the  testimony,  certainly  more  than  half  of  it ;  that  in  the 
case  of  W.  A.  Zimmerman  the  testimony  as  copied  by  this  deponent  was  submitted  to 
him  for  his  signature  that  he  declined  to  sign  the  same  unless  certain  corrections 
were  made  in  it ;  that  the  testimony  as  submitted  was  not  correct,  and  that  unless  the 
corrections  were  made  he  would  not  sign  the  same  ;  that  this  testimony  of  Zimmer- 
man's I  returned  to  Mr.  Mackey  and  I  never  recopiedit,  and  it  was  not  signed  by  Mr. 
Zimmerman  when  I  returned  it  to  Mr,  Mackey;  that  in  the  case  of  Maj.  T.  A.  Hu- 
guenin  the  testimony  as  copied  by  me  was  handed  to  him ;  he  glanced  over  it  and 
said,  "  I  suppose  it  is  all  right,"  and'  signed  it ;  that  I  may  have  submitted  other  testi- 
mony but  cannot  now  recall  the  cases  where  I  submitted  them  for  signatures  ;  that 
Mr.  Hogarth  in  certifying  these  papers  would  certify  a  number  of  them  at  one  time 
and  without  comparison  as  aforesaid  ;  that  I  took  a  number  of  packages  of  the  testi- 
mony to  the  express  office  and  shipped  them,  in  the  name  of  Mr.  Hogarth,  to  the  Clerk 
of  the  House  of  Representatives;  that  the  statements  herein  apply  only  to  the  testi- 
mony taken  in  Mr.  Mackey's  behalf;  I  know  nothing  about  the  testimony  taken  for 
Mr.  O'Connor;  that  from  the  early  part  of  January,  1881,  and  off  and  on  during  the 
summer  months,  and  nearly  up  to  the  time  that  the  last  package  of  Mr.  Mackey's 
testimony  was  sent  off,  I  was  copying;  that  the  packages  hereinbefore  mentioned  as 
shipped  by  me  were  given  to  me  by  E.  W.  M.  Mackey,  and  I  handed  to  him  the  re- 
ceipts for  the  same,  the  said  receipts  being  in  the  name  of  E.  H.  Hogarth. 

C.  SMITH. 

Sworn  to  before  me  this  16th  day  of  February,  1882. 

[SEAL.]  H.  L.  P.  BOLGER, 

Notary  Fublic. 

Affidavit  of  W.  A.  Zimmerman. 

The  State  of  South  Carolixa, 

Charleston  County : 
Before  me  personally  appeared  W.  A.  Zimmerman,  who,  being  first  duly  sworn,  de- 
poses and  says  that  on  or  about  the  1st  day  of  February,  A.  D.  1881,  he  was  exam- 
ined as  a  witness  on  behalf  of  E.  W.  M.  Mackey,  esq.,  contestant  in  the  contested 
election  case  of  E.  W.  M.  Mackey  against  M.  P.  O'Connor  for  a  seat  in  the  Forty- 
seventh  Congress  of  the  United  States ;  that  deponent's  testimony  was  taken  down 
in  short-hand  by  E.  H.  Hogarth,  a  stenographer  employed  by  the  said  E.  W.  M. 
Mackey  ;  that  some  time  afterwards  what  purported  to  be  his  testimony  was  brought 
to  him  by  one  C.  Smith,  written  out  in  long-hand,  to  be  signed  by  deponent;  that 
deponent  read  over  the  paper  so  brought  to  him,  carefully,  and  found  that  it  did  not 
contain  the  testimony  as  he  had  given  it,  but  that  the  same  had  been  altered  in  ma- 
terial iiarticulars,  so  much  so  that  deponent  refused  to  sign  it,  giving  as  a  reason  that 
it  was  not  a  correct  rendering  of  this  deponent's  testimony ;  that  this  deponent  re- 
fused to  sign  unless  these  alterations  were  corrected  and  the  testimony  restored  to 
the  shape  in  which  it  had  been  given  ;  that  the  said  C.  Smith  thereupon  took  back 
the  said  paper,  and  that  neither  it  nor  any  other  testimony  was  ever  presented  to 
deponent  for  his  signature  afterwards,  nor  has  he  ever  been  asked  again  to  sign  his 
testimony  in  the  case,  nor  has  he  signed  it. 

W.  A.  ZIMMERMAN. 

Sworn  to  before  me  this  17th  day  of  February,  1882. 

[SEAL.]  H.  L.  P.  BOLGER, 

Notary  Puilic. 


MACKEY    VS.    O'CONNOR.  583 

Affidavit  of  W.  E.  Earle. 

District  of  Columbia, 

City  of  Washington : 
Before  me  personally  carae  William  E.  Earle,  of  this  city,  who,  being  duly  sworn, 
deposes  and  .says  that  he  has  known  E.  H.  Hogarth,  a  stenographer,  formerly  of 
Charleston,  and  at  present  residing  in  Augusta,  Ga.,  for  many  years;  that  he  is  very 
familiar  with  the  handwriting  of  said  Hogarth,  who  has  done  much  reporting  for 
deponent  and  written  a  great  deal  in  his  presence ;  that  deponent  has  examined  the 
contestant's  testimony  in  the  case  of  E.  W.  M.  Mackey  against  M.  P.  O'Connor  for 
a  seat  in  the  Forty-seventh  Congress,  page  by  page,  and  that  none  of  the  body  of 
the  said  testimony  is  in  the  handwriting  of  the  said  Hogarth  ;  that  deponent  is  also 
familiar  with  the  handwriting  of  C.  Smith,  of  Charleston,  S.  C,  has  seen  him  write, 
and  said  Smith  has  done  copying  for  deponent;  that  a  great  deal,  by  far  the  greater 
part,  of  contestant's  testimony  in  the  case  above  stated  is  in  the  handwriting  of  said 
Smith ;  that  in  said  testimony  there  is  a  deposition,  unsigned,  of  one  W.  A.  Zimmer- 
man, which  deponent  believes  to  be  in  the  handwriting  of  said  C.  Smith ;  that  this 
motion  is  made  at  the  earliest  day  possible,  and  that  all  possible  diligence  has  been 
exercised  to  present  it  at  the  earliest  practical  moment ;  that  an  examination  of  the 
manuscript  testimony  when  returned  from  the  printer  aroused  suspicions  as  to  its  reg- 
ularity, and  this  was  immediately  followed  up  by  a  careful  and  scrutinizing  exami- 
nation of  it,  and  by  inquiries  which  had  to  be  made  by  mail,  and  the  material  in- 
formation was  not  received  until  Monday  night  the  13th  instant,  and  the  foregoing 
affidavits  only  came  to  deponent's  hand  this  day, 

WM.  E.  EARLE. 

Sworn  and  subscribed  to  before  me  this  20th  day  of  February,  A.  D.  1882. 
[SEAL.]  JOHN  E.  BEALL, 

liotary  Public. 

We  also  submit  the  affidavits  filed  by  Mr.  Dibble  as  to  matters  ap- 
parent on  the  face  of  the  manuscript  testimony,  submitted  by  him  after 
the  subcommittee  had  declined  to  permit  him  to  exhibit  to  them  the 
manuscript  for  their  inspection. 

Affidavit  of  Mr.  Dibble. 
In  the  Committee  on  Elections,  House  of  Representatives — Mackey  vs.  O'Connor. 

District  op  Columbia,  as  : 

Before  me  personally  came  Samuel  Dibble,  who,  being  duly  sworn,  made  oath  that 
he  has  examined  a  large  number  of  the  written  pages  from  which  was  printed  the  tes- 
timony in  the  case  of  Mackey  versus  O'Connor;  and  that  the  following  matters  appeared 
to  him  on  inspection  thereof;  and  that  he  places  these  matters  in  the  form  of  an 
affidavit,  under  the  ruling  of  the  subcommittee  of  the  Committee  on  Elections  made 
to-day,  in  order  that  they  may  have  before  them  some  of  the  facts  which  deponent  de- 
sired to  present  to  their  attention  and  inspection  to-day,  when  deponent  was  before 
them,  and  the  said  written  pages  were  accessible  and  on  the  table. 

First,  as  to  the  testimony  filed  in  behalf  of  the  contestant,  E.  W.  M.  Mackey:  Con- 
cerning this  the  questions  propounded  to  witnesses,  and  their  answers,  are  not  in  the 
handwriting  of  E.  H.  Hogarth.  Some  of  the  depositions  are  in  the  handwriting  of 
E.  W.  M.  Mackey  himself;  the  greater  number  of  the  others  are  in  the  handwriting 
which  deponent  is  informed  and  believes  to  be  the  handwriting  of  one  C.  Smith. 
Deponent  is  acquainted  with  the  handwriting  of  the  said  E.  H.  Hogarth  and  of  the 
said  E.  W.  M.  Mackey,  but  only  knows  the  handwriting  of  C.  Smith  from  information. 

In  the  said  testimony  filed  in  behalf  of  the  contestant,  E.  W.  M.  Mackey,  there  are 
erasures,  changes,  and  interlineations,  a  few  of  them  in  the  testimony  of  witnesses, 
but  those  deemed  more  important  by  this  deponent  are  in  the  papers  which  purport  to 
be  returns  of  United  States  supervisors  of  election.  The  following  instances  are  called 
to  notice: 

In  the  deposition  of  James  Just,  in  his  cross-examination,  on  page  186  of  the  manu- 
script record,  it  was  written  as  follows : 

"  Q.  Were  they  colored  men  ? — A.  I  kuow  one  or  two  were  not,  because  I  saw  them 
vote  the  Democratic  ticket. 

"Q.  Did  you  see  the  other  two  vote  the  Republican  ticket ! "  These  words,  by 
erasure  aiurinterliueation,  are  changed,  in  the  handwriting  said  to  be  C.  Smith's,  so 
as  to  read  as  follows  : 

'•  Q.  Were  they  colored  men  ? — A.  Yes,  sir. 


684  DIGEST    OF    ELECTION    CASES. 

"Q.  Did  you  see  them  vote  the  Republican  ticket?"  the  effect  of  the  change  "being 
to  relieve  the  T\-itnes8  from  a  contradictory  statement. 

On  page  391  of  the  manuscript  testimony  the  figures  "  417  "  and  "  393,"  respectively, 
have  been  inserted  in  place  of  erasures;  and  on  page  561,  the  figures  "225"  stand  in 
place  of  "238,"  erased. 

But  of  the  papers  purporting  to  be  United  States  supervisors'  returns,  made  by 
United  States  supervisors  to  the  chief  supervisor,  and  consisting  of  printed  blank* 
filled  out  with  writing  and  figures,  those  for  Calhoun  and  Packsville  precincts,  in 
Clarendon  County,  and  that  for  Hope  Engine  House,  in  Charleston  County,  and  those 
for  Branchville  and  Rowesville,  in  Orangeburg  County,  are  in  the  handwriting  of  E. 
W.  M.  Mackey,  excepting  the  signatures;  also  the  names  of  the  Congressional  candi- 
dates in  the  return  for  Fort  Motte  precinct,  in  Orangeburg  County,  the  rest  of  the  said 
return  being  in  some  other  handwriting.  And  that  the  said  precincts  are  most  of 
them  at  great  distances  apart,  that  is,  those  in  the  county  of  Clarendon  at  a  great 
distance  from  those  in  the  counties  of  Orangeburg  and  Charleston,  and  to  go  from  one 
to  the  other  would  require  a  long  and  tedious  journey. 

On  pages  30  and  31,  and  on  pages  2001  and  2U02  of  the  manuscript  testimony  (found 
on  pages  9  and  10,  and  on  pages  759  and  760  of  the  printed  testimony),  appear  two 
certificates  of  the  United  States  chief  supervisor  for  South  Carolina,  certifying  "  tabu- 
lar statements  of  the  vote  at  each  voting  precinct  in  the  second  Congressional  dis- 
trict" to  be  "  correctly  transcribed  from  the  returns  made  to  me  by  the  United  State* 
supervisors  of  election  at  each  poll,  of  the  vote  counted  and  returned  at  their  respect- 
ive polls  by  the  managers  of  election  thereat."  In  each  of  the  tabulated  statement* 
the  return  of  the  Calhoun  precinct,  Clarendon  County,  is  as  follows: 

E.  W.  M.  Mackey.    M.  P.  O'Connor. 
Calhoun 404  409 

Now,  an  inspection  of  the  manuscript  testimony,  pages  786  and  787,  will  show  the 
following  in  the  handwriting  of  E.  W.  M.  Mackey: 

"  Q.  Did  you  make  a  report  to  the  chief  supervisor  ? — A.  Yes,  sir. 

"  Q.  Is  this  your  report  (handing  witness  a  paper)  ? — A.  Yes,  sir. 

"  The  report  was  here  introduced  in  evidence,  and  is  as  follows." 

Here  follows  what  purports  to  be  the  United  States  supervisor's  retnm  for  Calhoun 
precinct,  and  all  the  written  part  of  the  same,  excepting  the  signature,  is  in  the  hand- 
writing of  E.  W.  M.  Mackey,  and  contains  the  Congressional  vote,  as  counted  by  the 
managers,  as  follows : 

"  The  whole  number  of  votes  counted  by  the  managers  of  elections  for  member  of 
Congress  was ; 

"Of  which  404  votes  were  counted  for  Edmund  W.  M.  Mackey; 

"  Of  which  639  votes  were  counted  for  M.  P.  O'Connor; " 
the  figures  "  639  "  being  entirely  diff"erent  from  the  figures  "  409  "  certified  by  the  chief 
supervisor  to  be  the  figures  of  M.  P.  O'Connor's  vote  as  set  forth  in  the  genuine  return. 

In  addition  to  this,  in  various  places,  in  papers  introduced  as  United  States  super- 
visors' returns,  figures  have  been  altered  in  places  material  to  the  case  presented  by 
E.  W.  M.  Mackey,  and  have  been  printed  as  altered.     Instances  are  as  follows : 

ManoBcript    Printed 
page.  page. 

Jordan's 822  330 

Branchville 484  219 

Brown's 540  235 

Corbettsville 578  248 

Fort  Motte 674  280 

Deponent  has  not  time  to  specify  the  character  of  this  and  other  changes,  as  he  ha» 
to  file  this  affidavit  to-day. 

Secondly,  as  to  the  testimony  filed  in  behalf  of  M.  P.  O'Connor,  deceased : 

In  this  testimony,  running  in  manuscript  from  pages  880  to  1969,  inclusive,  the  in- 
terlineations and  erasures  ape  by  the  hundreds.  Some  appear  to  deponent  to  be  gram- 
matical corrections,  some  rhetorical,  and  some  material.  Deponent  has  time  to  in- 
stance but  one,  found  on  manuscript  pages  905  and  906.  The  manuscript  oi'iginally 
was  as  follows : 

"Q.  Was  not  the  number  of  Republican  tickets  seventy-eight  f  When  you  first 
opened  the  box  and  counted  the  ballots  in  order  to  ascertain  the  whole  number,  did 
you  not  put  the  whole  number  of  Republican  and  the  whole  number  of  Democratic 
tickets  in  separate  piles  ? — A.  No,  sir,  because  we  had  such  a  large  white  vote." 

All  this  is  erased  except  the  first  part  of  the  question,  and  an  answer  to  that  part  i» 
inserted  in  the  handwriting  of  E.  W.  M.  Mackey,  so  as  to  read  as  follows: 

"Q.  Was  not  the  number  of  Republican  tickets  seventy-eight  ? — A.  I  think  it  was." 

Deponent  would  like  to  name  other  instances,  but  want  of  time  forbids,  and  the 


MACKEY    VS.    O  CONNOR.  585 

testimony  is  in  the  hands  of  the  committee  for  any  further  inspection  the.v  may  desire. 
Deponent  is  now  expecting  other  aflBdavits,  of  The  sending  of  which  he  has  received 
telegraphic  advice  since  the  subcommittee  adjourned  this  morning,  and  there  are 
other  witnesses  who,  as  he  is  informed  and  believes  from  communications  received 
by  him,  would  corroborate  the  affidavit  of  C.  Smith,  but  are  unwilling  to  testify;  and 
deponent  is  satisfied  that  he  cannot  secure  their  testimony  except  under  some  order 
of  the  Honse  of  Representatives  iii  the  premises. 

SAMUEL  DIBBLE. 
Subscribed  and  sworn  to  before  me  this  first  day  of  March,  A.  D.  1882. 

THOMAS  W.  SORAN, 

Notary  Public. 

By  the  affidavits  of  Mr.  O'Connor's  counsel  it  appears,  and  the  fact 
is  not  controverted,  that  all  these  transactions  of  Mr.  Mackey  and  his 
assistants  in  the  transcription  and  alteration  of  the  testimony  were 
done  without  their  knowledge. 

The  subcommittee,  by  resolution  of  March  1, 1882,  limited  the  sitting^ 
member  to  that  day  for  oflering  affidavits  concerning  the  alteration  of 
the  depositions.  On  the  morning  of  March  2  an  affidavit,  of  date  of 
February  28,  1882,  was  received  by  the  sitting  member,  and  forthwith 
served  on  the  contestant  and  filed  with  the  clerk  of  the  committee.  It 
was  corroborative  of  the  affidavit  of  C.  Smith,  and  the  affiant  made 
oath  "  that  he  had  seen  Mr.  Mackey  scratch  out  the  testimony  and  Mr. 
C.  Smith  write  it  over;  that  he  has  seen  Mr.  C.  Smith  hand  to  Mr. 
Mackey  written  sheets,  which  deponent  believes  was  the  original  testi- 
mony, and  Mr.  Mackey  tear  them  up  and  place  the  pieces  in  a  stove," 
and  also  named  three  persons  whom  he  swore  he  had  seen  reading  the 
original  sheets  for  C.  Smith  to  copy  from  their  reading.  The  sitting 
member  tendered  this  affidavit,  with  the  statement  that  the  three  per- 
sons named  were  political  friends  of  the  contestant,  and  that  he  hoped 
that  the  subcommittee  would  obtain  their  testimony,  even  if  tendered 
ex  parte  by  the  contestant;  but  the  majority  of  the  subcommittee,  after 
consideration,  determined  to  exclude  this  affidavit,  as  being  filed  too 
late. 

Mr.  Mackey's  explanation  is  as  follows: 

Personally  appeared  E.  W.  M.  Mackey,  who,  being  duly  sworn,  says  that  for  the 
purpose  of  taking  testimony  in  his  contest  against  Mr.  M.  P.  O'Connor  for  a  seat  in 
the  Forty-seveuth  Congress  deponent  employed  one  E.  H.  Hogarth,  a  notary  public 
and  a  stenographer ;  that  at  the  time  deponent  began  the  taking  of  his  testimony,  and 
for  several  months  after,  it  was  generally  believed  that  there  would  be  an  extra  ses- 
sion of  Congress  soon  after  the  inauguration  of  President  Garfield  ;  that  deponent 
was  therefore  exceedihgly  solicitous  in  such  event  that  the  testimony  in  his  case 
should  be  ready  to  be  submitted  to  the  House  of  Representatives  immediately  upon 
its  assembling  ;  that  in  the  taking  of  testimony  in  his  contest  in  the  previous  Con- 
gress, deponent  had  employed  the  said  E.  H.  Hogarth,  whom,  in  transcribing  of  his 
stenographic  notes,  deiioueut  discovered  to  be  an  exceedingly  slow  writer,  esi>ecially 
when  required  to  write  in  a  clear  and  legible  hand  ;  that,  therefore,  for  the  purpose 
of  facilitating  the  said  £.  H.  Hogarth  in  the  transcribing  of  his  stenographic  notes 
of  the  depositions  taken  in  the  present  contest,  it  was  agreed  by  and  between  depo- 
nent and  the  said  E.  H.  Hogarth  that  the  latter  should  transcribe  his  notes  in  a  rough 
and  hasty  hand,  and  that  the  same  should  be  afterwards  copied  by  others  to  be  em- 
ployed for  that  purpose  ;  that  except  in  some  instances,  not  exceeding  nine  or  ten, 
where  the  said  E.  H.  Hogarth  read  his  notes  and  the  writing  was  done  either  by  C. 
Smith,  G.  M.  Magrath,  or  deponent,  the  said  E.  H.  Hogarth,  in  accordance  with  the 
understanding  aforesaid,  transcribed  his  notes  in  a  very  rough  and  hasty  handwrit- 
ing and  the  pages  so  written  were  then  copied  by  C.  Smith  and  G.  M.  Magrath  in  a 
neat  and  legible  handwriting. 

This  explanation  is  not  satisfactory.  If  the  "  rough  and  hasty  "  copies 
made  by  Hogarth  were  legible,  it  would  certainly  have  been  more  ex- 
peditious for  Hogarth  to  have  certified  and  forwarded  them,  than  for 
the  contestant  to  liave  had  them  all  rewritten  by  himself,  C.  Smith,  and 
Magrath.    So  that  the  pretext  of  being  in  a  hurry  is  not  supported  by 


586  DIGEST  OF  ELECTION  CASES. 

taking  twice  tlie  time  and  trouble  and  expense  necessary,  for  the  simple 
purpose  of  reproducing  testimony  exactly  as  it  was  already  written. 

Besides,  the  contestant,  Mr.  Mackey,  has,  by  his  own  act,  indicated 
that  he  was  not  in  a  hurry  in  getting  in  his  testimony.  At  the  time  he 
began  taking  his  testimony  he  entered  into  an  agreement  with  the 
attorney  of  Mr.  O'Connor,  whereby,  '•  for  the  convenience  of  both  par- 
ties," it  was  agreed  to  take  testimony  for  a  longer  period  than  was  al- 
lowed by  the  statute,  as  appears  by  one  of  the  stipulations  of  the  agree- 
ment, as  follows : 

Second.  That  for  the  convenience  of  both,  parties,  and  the  better  to  enable  them  to 
take  such  testimony  as  may  by  them  be  deemed  necessary,  all  limitations  as  to  time 
are  hereby  expressly  waived,  and  testimony  shall  be  taken  at  such  times  as  may  be 
agreed  upon  by  the  parties  to  said  contest. 

And  the  testimony  of  Mr.  Mackey  was  none  of  it  forwarded  to  the 
Clerk  of  the  House  until  May,  1881,  and  a  portion  of  it  as  late  as  Sep- 
tember, 1881. 

It  will  be  noticed  that  in  no  instance  does  the  notary  public,  Hogarth, 
certify  that  the  depositions  filed  with  the  Clerk  of  the  House  were  re- 
duced to  writing  in  his  presence,  and  in  addition  he  distinctly  makes 
oath  that  he  did  not  forward  the  same. 

The  objection  was  duly  made  that  the  notary  public  had  not  certified 
that  the  testimony  was  reduced  to  writing  in  his  presence,  and  that  it 
was  not  forwarded  by  the  officer  taking  the  same. 

The  following,  then,  are  established  facts : 

The  depositions  of  the  contestant,  with  one  or  two  exceptions,  were 
taken  before  E.  H.  Hogarth,  who  was  a  stenographer  as  well  as  a  notary 
public.  All  of  the  testimony  taken  before  this  notary,  except  three  or 
four  depositions,  was  transcribed  from  the  stenographic  notes  in  his 
own  handwriting  and  delivered  to  the  contestant.  These  depositions  so 
taken  before  and  written  out  by  the  notary  were  never  forwarded  to  the 
House.  They  are  not  now  and  never  have  been  on  file  either  in  this 
committee  or  in  the  House.  Some  of  these  depositions  were  burned  and 
some  of  them  were  torn  up  by  the  contestant.  The  rest  were  retained 
or  otherwise  disposed  of  by  him.  In  place  of  these  depositions  the  con- 
testant sent  tt)  the  House  certain  papers  written  by  himself  and  his 
agents,  which  papers  are  now  in  the  custody  of  this  committee,  and 
have  been  printed  as  the  contestant's  depositions  in  this  case.  The 
method  adopted  by  the  contestant  in  the  preparation  of  these  papers 
was  this :  He  took  the  depositions  in  the  handwritiHg  of  Mr.  Hogarth 
and  remodeled  them  by  interlineations,  by  erasures,  by  cutting  out  por- 
tions of  the  original  sheets,  and  either  omitting  such  portions  altogether 
or  substituting  other  sheets  in  their  stead,  by  erasing  sometimes  nearly 
a  whole  page  at  once,  by  inserting  entire  pages  in  the  handwriting  of 
the  contestant,  of  which  there  was  no  original  in  the  depositions  written 
by  Mr.  Hogarth.  The  interlineations  were  in  the  handwriting  of  the 
contestant. 

The  contestant  delivered  the  most  of  the  depositions  so  remodeled  to 
C.  Smith,  who  wrote  them  over,  including  all  interlineations  and  inser- 
tions, and  excluding  all  erasures.  Some  of  the  depositions  so  replaced 
were  burned,  and  others  torn  ui)  by  the  contestant.  In  some  cases, 
after  Mr.  Smith  had  reproduced  the  paper  in  the  form  required  by  the 
contestant's  erasures,  insertions,  and  interlineations,  the  contestant  cor- 
rected the  remodeled  paper  by  fresh  interlineations  in  the  contestant's 
hand,  and  it  was  then  rewritten  in  full  by  Mr.  Smith  to  meet  the  final  re- 
quirements of  the  contestant.  I^one  of  the  papers  were  written  in  the 
presence  of  the  notary  public. 


MACKEY    VS.    O'CONNOR.  587 

After  these  papers  were  so  prepared  they  were  never  examined  by  the 
notary  or  compared  either  with  his  stenographic  notes  or  with  his  man- 
uscript before  he  signed  the  certificates.  The  certificates  were  presented 
to  him  ready  for  signature  by  Mr.  Smith.  They  were  in  the  following 
form: 

State  of  South  Carolixa, 

Charleston  County: 

I,  E.  H.  Hogarth,  a  notary  iniblic  in  and  for  the  State  of  South  Carolina,  do  hereby  cer- 
tify that  the  foregoing  deposition  was  taken  by  me  on  the day  of ,  A.  D. 

1881,  pursuant  to  notice  of  contestant  and  in  accordance  with  the  provisions  of  law, 
the  contestant  being  present  in  person  and  the  contest^e  being  represented  by  his  at- 
torney. 

Given  under  my  hand  and  oflScial  seal  this dav  of ,  A.  D.  1881. 

[SEAL.]  "  E.  H.  HOGARTH, 

Notary  Public,  S.  C. 

These  certificates,  although  signed  in  some  cases  several  months  after 
the  testimony  was  concluded,  were  dated,  respectively,  as  of  the  days 
when  the  depositions  for  which  the  certified  papers  were  substituted  were 
taken.  Mr.  Smith,  the  employ^  of  the  contestant,  sent  these  papers  to 
the  Clerk  of  the  House  of  Representatives,  not  by  mail,  but  by  express, 
taking  a  receipt  therefor  from  the  express  company  in  the  name  of  Mr. 
Hogarth,  which  he  delivered  to  the  contestant. 

The  following  are  the  provisions  of  the  statute: 

Sec.  122.  The  officer  shall  cause  the  testimony  of  the  witnesses,  together  with  the 
questions  proposed  by  the  parties  or  their  agents,  to  be  reduced  to  writing  in  his  pres- 
ence and  in  the  presence  of  the  parties  or  their  agents,  if  attending,  and  to  be  duly- 
attested  by  the  witnesses  respectively. 

Sec.  127.  All  officers  taking  testimony  to  be  used  in  a  contested-election  case,  whether 
by  deiiosition  or  otherwise,  shall,  when  the  taking  of  the  same  is  completed  and  with- 
out unnecessary  delay,  certify  and  carefully  seal  and  immediately  forward  the  same  by 
mail  addressed  to  the  Clerk  of  the  House  of  Representatives  of  the  United  States,  Wash- 
ington, D.  C. 

The  corresponding  provisions  of  the  judiciary  act  of  1789  are  in  the 
following  words : 

And  everj-  person  deposing  as  aforesaid  shall  be  carefully  examined  and  cautioned 
and  sworn  or  affirmed  to  testify  the  whole  truth,  and  shall  subscribe  the  testimony  by 
hi  in  or  her  given  after  the  same  shall  be  reduced  to  writing,  which  shall  be  done  only 
by  the  magistrate  taking  the  deposition,  or  by  the  deponent  in  his  presence.  And  the 
depositions  so  taken  shall  be  retained  by  such  magistrate  until  he  deliver  the  same 
with  his  own  hand  into  the  court  for  which  they  are  taken,  or  shall,  together  with  a 
certificate  of  the  reasons  as  aforesaid  of  their  being  taken,  and  of  the  notice,  if  any, 
given  to  the  adverse  party,  be  by  him,  the  said  magistrate,  sealed  up  and  directed  to 
such  court  and  remain  under  his  seal  until  opened  in  court. 

The  following  provisions  are  common  to  the  contested-election  law 
and  the  judiciary  act  of  1789 : 

1.  The  deposition  must  be  reduced  to  writing  in  the  presence  of  the 
oflBcer. 

2.  It  must  be  transmitted  to  the  tribunal  before  which  it  is  to  be  used 
by  the  oflBcer  himself;  and  until  so  transmitted  it  must  remain  in  the 
custody  of  the  oflBcer. 

It  is  obvious,  therefore,  that  decisions  of  the  Federal  courts  on  these 
two  provisions  of  the  judiciary  act  for  the  writing  out  and  transmittal 
of  the  deposition  will  be  authorities  in  cases  which  may  come  before 
this  committee  under  the  two  corresponding  provisions  of  the  statute 
relating  to  contested  elections. 

In  Bell  vs.  Morrison  (1  Peters,  351),  Judge  Story,  delivering  the  opin- 
ion of  the  court,  held  that,  under  section  30  of  the  judiciary  act,  a  depo- 


588  DIGEST    OF    ELECTION    CASES. 

sition  is  not  admissible  if  it  is  not  shown  that  it  was  reduced    to 
wri  ng  in  presence  of  the  magistrate. 

I  United  States  vs.  Smith  (4  Day,  121),  the  counsel  for  defendant 
objected  on  the  trial  to  a  deposition  offered  by  the  plaintiff  on  the  ground 
that  it  did  not  appear  that  it  was  reduced  to  writing,  either  by  the  mag- 
istrate or  by  the  witness  in  the  presence  of  the  magistrate,  as  required 
by  section  30  of  the  judiciary  act  of  1789.  The  magistrate's  certificate 
was  in  these  words : 

Personally  appeared  the  above-named  Thaddeiis  E.  Austin,  of  SufiSeld,  in  the  State 
of  Connecticut,  and,  being  duly  cautioned,  made  oath  to  the  truth  of  the  above  depo- 
sition by  him  subscribed  aud  written  in  my  presence,  «fec. 

Judge  Pierrepont  Edwards,  delivering  the  decision  of  the  court,  said  : 

The  provisions  of  the  act  of  Congress  relative  to  the  taking  of  depositions  are  very 
important,  and  ought  to  be  adhered  to  strictly.  This  deposition  cannot  be  read.  The 
question  is  not  a  new  one.  In  England  the  lord  chancellor  has  refused  to  admit  depo- 
sitions taken  as  this  was. 

In  the  caseof  Edmonston  vs.  Barrett  (2  Oranch  C.  C,  228),  the  plaint- 
iff's attorney  offered  in  evidence  on  the  trial  the  deposition  of  John 
Marshall,  of  Charleston,  S.  C,  taken  before  the  Hon.  John  Drayton, 
(iistrict  judge  of  the  United  States.  The  certificate  of  the  judge  was 
in  the  following  words : 

District  of  South  Carolina,  as  : 

On  this  28th  day  of  May,  1818,  personally  appeareth  the  under -named  deponent, 
John  Marshall,  of  Charleston,  merchant,  before  me  the  subscriber,  John  Drayton,  dis- 
trict judge  of  the  district  aforesaid,  and  being  by  me  carefully  examined,  cautioned, 
and  sworn  in  due  form  of  law  to  testify  the  whole  truth  and  nothing  but  the  truth, 
relating  to  a  certain  civil  cause,  &c.,he  maketh  oath  to  the  deposition  above  written, 
and  subscribes  the  same  in  my  presence,  the  said  deposition  being  first  reduced  to 
writing  by  the  deponent. 

The  attorney  for  the  defendant  objected  to  the  deposition  on  the 
ground  that  the  judge  had  not  certified  that  it  was  reduced  to  writing 
in  his  presence,  as  required  by  section  30  of  the  judiciary  act  of  1789. 
The  attorney  for  the  plaintiff"  contended  that  it  was  to  be  presumed  to 
have  been  so  written  because  the  law  required  it.  But  the  court  unani- 
mously sustained  the  objection  and  rejected  the  deposition. 

In  the  case  of  Pettibone  vs.  Derringer  (4  Wash.,  215),  tried  in  the  circuit 
court  of  the  United  States  for  the  third  circuit  at  Philadelphia,  in  1818, 
before  Justice  Washington,  of  the  Supreme  Court  of  the  United  States, 
aud  District  Judge  Peters,  objection  was  made  on  the  trial  to  the  intro- 
duction of  a  deposition  on  the  ground  that  the  officer  who  took  it  had 
not  certified  that  it  was  reduced  to  writing  by  the  witness  in  his  pres- 
ence.   The  court  sustained  the  objection  and  held, 

That  a  deposition  taken  under  the  thirtieth  section  of  the  judiciary  act  cannot  be 
used  unless  the  judge  certifies  that  it  was  reduced  to  writing  either  by  himself  or  by 
the  witness  in  his  presence. 

In  the  case  of  Eaynor  vs.  Haynes  (Hempst.,  689),  decided  by  the 
United  States  circuit  court  for  the  ninth  circuit,  in  1854,  depositions 
offered  by  the  attorneys  for  the  defendant  were  objected  to  on  the 
ground  that  the  magistrate  failed  to  state  that  the  depositions  were  re- 
duced to  writing  in  his  presence,  aud  the  objection  was  sustained  by 
the  court. 

In  the  case  of  Cook  vs.  Burnley  (11  Wall.,  659),  when  the  defendants' 
case  was  reached  in  the  course  of  the  trial,  the  defendants  offered  to 
read  a  deposition  taken  under  section  30  of  the  judiciary  act.  There 
was  no  certificate  by  the  magistrate  that  he  reduced  the  testimony  to 


MACKEY    VS.    OCONSOR.  589 

writing  himself,  or  that  it  was  done  by  the  witness  in  his  presence. 
The  deposition  was  excluded  by  the  district  court.  The  Supreme  Court 
of  the  United  States  said  : 

There  is  uo  certificate  by  the  magistrate  that  he  reduced  the  testimony  to  writ- 
ing himself,  or  that  it  was  done  in  his  presence,  which  omission  is  fatal  to  the  deposi- 
tion. 

In  Baylis  vs.  Cochran  (2  Johnson  (N.  Y.),  416),  Chief  Justice  Kent, 
delivering  the  opinion  of  the  court,  said  : 

The  manner  of  executing  the  commission  ought  not  to  be  left  to  inference,  but  should 
be  i)laiuly  and  explicitly  stated.  It  would  be  an  inconvenient  precedent  and  might 
lead  to  great  abuse  to  establish  the  validity  of  such  a  loose  and  informal  system ; 
matters  which  are  essential  to  the  due  execution  of  the  commission  ought  to  be  made 
to  appear  under  the  signature  of  the  commissioners.  Among  these  essential  mat- 
ters is  the  examination  of  the  witness  on  oath  by  the  commissioners,  and  the  reduc- 
ing of  his  examination  to  writing  by  them,  or  at  their  instance  and  under  their  care. 
"We  are  accordingly  of  opinion  that  the  judgment  of  the  court  below  ought  to  be  af- 
firmed. 

While  the  particular  facts  in  this  New  York  case  differ  from  the  facts 
of  the  case  now  on  trial,  it  is  quite  unnecessary  to  suggest  the  forcible 
application  of  the  doctrine  of  that  case  tcrthis. 

The  case  of  Summers  vs.  McKim  (12  S.  &  R.,  404)  is  a  very  strong 
authority  on  the  point  now  under  consideration.  There  was  at  the  time 
uo  law  in  Pennsylvania  requiring  the  deposition  to  be  reduced  to  writ- 
ing in  the  presence  of  the  ofl&cer.  There  was  no  rule  of  court  to  that 
effect*  The  only  regulation  on  the  subject  was  a  rule  of  court  requir- 
ing the  deposition  to  be  talcen  before  a  justice.  But  Chief- Justice  Tilgh- 
man,  delivering  the  opinion  of  the  court,  said : 

Tiie  third  bill  of  exception  contains  two  distinct  points.  The  first  point  is  on  the 
admissibility  of  the  deposition  of  George  Leech;  several  exceptions  were  made  to 
this  evidence,  but  there  was  one  which  was  decisive;  and  as  it  involves  a  principle  of 
great  importance  in  practice  I  am  glad  that  an  opportunity  is  offered  to  the  court  of 
settling  it.  This  deposition  was  taken  under  a  rule  of  court  before  a  justice  of  the 
jieace  of  Clearfield  County,  but  it  was  drawn  up  in  the  city  of  Lancaster  from  the 
mouth  of  the  witness  by  Mr.  Hopkins,  counsel  for  the  defendant,  and  then  sent  to 
Clearfield  County  and  sworn  to  there. 

Now,  although  the  character  of  the  counsel  in  the  present  instance  puts  him  above 
all  suspicion  of  unfair  dealing,  yet  it  would  be  a  practice  of  most  dangerous  tendency  if 
depositions  so  taken  were  to  be  admitted  as  evidence.  The  counsel  ofthe  party  produc- 
ing the  witness  is  the  last  person  who  should  be  permitted  to  draw  the  deposition,  be- 
cause he  will  naturally  be  disposed  to  favor  his  client,  and  it  very  easy  for  an  artful  man 
to  make  use  of  such  expressions  as  may  give  a  turn  to  the  testimony  very  different 
from  what  the  witness  intended.  I  know  that  depositions  are  sometimes  taken  in  this 
manner  by  consent  of  parties ;  and  when  the  counsel  on  both  sides  are  present  the  dan- 
ger is  not  so  great ;  but  in  the  present  case  there  was  no  consent,  nor  was  the  counsel  of 
the  plaintiffs  present.  The  rule  of  court  is  that  the  deposition  shall  be  taken  before 
a  justice  ;  it  ought,  therefore,  to  be  reduced  to  writing  from  the  mouth  of  the  witness  in 
the  presence  of  the  justice,  though  it  need  not  be  drawn  by  him  ;  and  in  case  of  differ- 
once  of  opinion  in  taking  down  the  words  of  the  witness  the  justice  should  decide.  In 
chancery,  if  the  counsel  of  one  of  the  parties  draws  the  deposition  before  the  witness 
goes  before  the  commissioners,  it  will  not  be  permitted  to  be  read  in  evidence.  (1 
How.  Ch.,  360.)  This  certainly  is  a  good  rule  ;  the  taking  of  testimony  by  deposition 
is  at  best  but  a  very  imperfect  way  of  arriving  at  the  truth ;  every  precaution  should, 
therefore,  be  taken  to  guard  against  abuses.  It  is  very  clear  to  me  that  the  mode  in 
which  the  deposition  of  George  Leech  was  taken  is  subject  to  great  abuse,  and  should 
be  put  down  at  once.     I  am  of  opinion,  therefore,  that  it  was  very  properly  rejected. 

The  following  is  a  case  where  depositions  went  into  the  hands  of  the 
defendant  improperly,  and  thej'  were  excluded  by  the  court.  It  was  not 
shown  they  were  changed  or  altered  (Ross  vs.  Barker,  5  Watts,  394 
Pa.).    Chief- Justice  Gibson  said : 

Though  the  depositions  had  been  put  into  the  office,  they  had  been  taken  away  and 
brought  back  again  by  one  of  the  defendants.    What  may  have  happened  to  them  in 


590  DIGEST    OF   ELECTION   CASES. 

this  interval  of  surreptitious  custody — probably  nothing,  but  possibly  a  great  deal — 
cannot  certainly  be  known.  It  is  abundantly  clear  they  were  not  tiled  within  the 
meaning  of  the  rule,  or  in  the  keeping  and  custody  provided  by  the  law. 

If  for  the  facts  of  the  last  two  cases  we  substitute  the  facts  of  this 
case,  in  which  the  depositions,  after  having  been  taken  in  shorthand 
by  the  notary  and  written  out  by  the  notary  in  the  ordinary  hand, 
were  not  transmitted  to  the  House  as  the  law  required,  but  were  deliv- 
ered unsealed  into  the  custody  of  the  contestant  himself  and  kept  in  his 
house,  and  reproduced,  and  yet  again  reproduced  by  an  employe  of  the 
contestant  until  molded  at  last  into  forms  entirely  satisfactory  to  him, 
whereupon  the  manuscript  of  the  notary  was  retained  or  actually  de- 
stroyed and  the  work  of  the  contestant  put  in  its  place,  and  the  notary's 
certificates  thereto  attached  dated  respectively  as  of  the  days  when  the 
witnesses  actually  testified,  and,  therefore,  in  some  cases  many  months 
prior  to  the  time  when  the  contestant's  home  manufacture  so  certified 
was,  in  fact,  completed,  we  shall  at  once  see  with  how  much  greater  force 
the  doctrine  of  the  supreme  court  of  Pennsylvania  applies  to  this  case 
than  to  those. 

In  Eailroad  Company  vs.  Drew  (3  Woods  C.  Ct,  692),  tried  in  1879 
before  the  United  States  circuit  court  for  the  fifth  circuit,  objection  was 
made  to  certain  depositions  on  the  ground  that  the  answers  of  the  wit- 
nesses had  been  written  out  by  counsel  in  advance.  The  objection  was 
sustained.  Mr.  Justice  Bradley,  announcing  the  decision  of  the  court, 
said : 

The  fact,  however,  that  the  answers  of  the  witnesses  were  prepared  in  writing  by 
their  counsel  in  advance  is  fatal  to  the  depositions.  The  examinations  should  be  made 
by  the  examiner,  and  not  by  counsel  before  the  witnesses  are  brought  before  the  ex- 
aminer to  give  their  testimony.     The  depositions  must  be  suppressed. 

The  case  of  Beale  vs.  Thompson  (8  Cranch,  70)  bears  indirectly  and  yet 
with  great  force  on  the  point  now  under  consideration.  On  the  trial  in 
the  circuit  court  the  defendant  had  offered  in  evidence  a  deposition 
taken  before  the  judge  of  the  district  court  of  the  United  States  for  the 
district  of  Xew  Hampshire,  under  the  thirtieth  section  of  the  judiciary 
act  of  1879.  The  deposition  was  sealed  up  by  the  judge  but  directed  to 
the  clerk  of  the  court,  and  he,  supposing  it  to  be  a  letter  relating  to  his 
official  business,  opened  it  out  of  court.  The  court  below  rejected  the 
deposition.  Judge  Story  delivered  the  opinion  of  the  Supreme  Court, 
as  follows : 

The  single  point  in  this  case  is  whether  the  circuit  court  of  the  District  of  Columbia 
erred  in  rejecting  the  deposition  of  Tunis  Craven.  Independent  of  all  other  grounds 
the  court  are  of  opinion  that  the  fact  of  the  depositions  not  having  been  opened  in 
court  is  a  fatal  objection.  The  statute  of  24th  September,  178,  ch.  20,  sec.  30,  is  ex- 
press on  this  head.     The  judgment  of  the  circuit  court  must  be  affirmed. 

The  case  of  Shankriker  vs.  Beading  (4  McL.,  240)  also  bears  strongly 
on  the  question  now  under  consideration.    The  court  said : 

On  the  trial  of  this  case  a  deposition  was  offered  in  evidence,  which  was  taken  in 
New  York  December  29, 1847.  It  was  mailed  at  Waterloo,  in  that  State,  June  the  4th^ 
and  received  from  the  post-office  here  the  7th  of  June.  The  county  judge  certified  that 
the  deposition  was  reduced  to  writing  by  the  deponent  in  his  presence,  but  did  not 
state  that  it  was  retained  by  him  until  it  was  sealed  and  directed  to  the  clerk  of  the 
circuit  court. 

It  was  so  directed,  but  by  whom  is  not  stated.  The  name  of  the  case  in  which  the 
deposition  was  taken  was  indorsed  on  the  envelope.  For  tjie  want  of  this  certificate 
the  deposition  was  objected  to. 

The  act  of  Congress  provides  that  the  depositions  so  taken  shall  be  retained  by  such 
magistrate  until  lie  deliver  the  same  with  his  own  hand  into  the  court  for  which  they 
were  taken,  or  shall,  together  with  a  certificate  of  the  reasons  as  aforesaid  of  their 
being  taken,  and  of  the  notice,  if  any,  given  to  the  adverse  party,  be  by  him,  the  said 


MACKEY    VS.    O  CONNOR.  591 

magistrate,  sealed  up  and  directed  to  such  court,  and  remain  under  his  seal  until 
oijeuetl  iu  conrt. 

The  deposition  objected  to  may  have  been  handed  to  the  party  at  whose  instance 
it  was  taken,  who  forwarded  it  by  mail  to  the  clerk  of  the  court.  The  law  did  not  in- 
tend that  either  party  should  have  possession  of  the  deposition  until  it  should  be  re- 
ceived by  the  clerk  and  opened  by  the  general  or  special  order  of  the  court.  The  depo- 
sition is  rejected. 

Now,  while  the  language  of  the  provision  of  the  Revised  Statutes 
relating  to  contested  elections  is  not  identical  on  the  point  of  the  cus- 
tody and  transmission  of  the  depositions  with  the  language  of  the  cor- 
responding i)rovision  of  the  judiciary  act  of  1789,  still  in  substance  the 
two  statutes  are  in  this  particular  alike ;  for  the  provision  of  the  law 
relating  to  contested  elections  absolutely  excludes  the  possibility  of  the 
possession  of  the  depositions,  whether  sealed  or  unsealed,  by  a  party 
before  their  transmittal  to  Washington.  It  also  absolutely  excludes  the 
possibility  of  a  transmittal  of  the  deposition  by  a  party  or  his  employes. 
The  doctrine  of  the  decisions  in  these  two  cases  just  cited  from  Cranch 
and  McLean  is  fatal  to  these  depositions,  which  were  kept  unsealed  in 
the  house  of  the  contestant  and  out  of  the  custody  of  the  notary,  and 
were  finally  destroyed  and  replaced  by  documents  called  depositions 
prepared  iu  his  house,  which  latter  were  transmitted  not  by  the  notary 
but  by  the  contestant,  some  of  them  at  the  expiration  of  a  period  of 
several  months  after  the  time  when  the  genuine  depositions  were  taken. 

In  the  United  States  vs.  Price  (2  Wash.  C.  Ct.,  356)  a  commission  to 
take  testimony,  which  had  issued  in  a  case  to  which  the  United  Statefe 
was  a  party,  was  set  aside  because  it  had  been  opened  by  the  Secretary 
of  War  and  some  other  officer  of  the  Government  before  it  came  into 
the  hands  of  the  clerk. 

In  Hunt  vs.  Larpin  (21  Iowa,  484)  the  Supreme  Court  sustained  an  ob- 
jection to  certain  depositions  based  upon  the  ground  that  they  had  been 
written  out  by  the  counsel  of  the  party  in  whose  favor  they  were  to  be 
read  as  testimony.  And  yet  there  was  no  law  in  force  in  Iowa  at  that 
time  forbidding  parties  or  their  attorneys  to  write  out  the  depositions  of 
witnesses,  or  requiring  the  depositions  to  be  written  in  the  presence  of 
the  officer.    The  followiug  was  the  provision  of  the  statute: 

Sec.  4079.  The  person  before  whom  any  of  the  depositions  above  contemplated  are 
taken  must  cause  the  interrogatories  propounded  (whether  written  or  oral)  to  be  writ- 
ten out  and  the  answers  thereto  to  be  immediately  inserted  underneath  the  respective 
questions.  The  language  most  be  in  the  language  as  nearly  as  practicable  of  the  wit- 
ness, if  either  party  requires  it.  The  whole  being  read  over  by  or  to  the  Tvitness,  must 
be  by  him  subscribed  and  sworn  to  in  the  usual  manner. 

In  Williams  vs.  Chadbourne  (6  Cal.,  559)  the  defendant  objected  to  a 
deposition  offered  by  the  plaintiff  on  the  ground  that  the  certificate  did 
not  show  that  the  deposition  had  been,  as  the  law  required,  read  to  the 
witness  before  he  signed  it.     The  court  sustained  the  objection  and  said  : 

On  the  second  point  of  objection  we  are  satisfied  that  the  deposition  vras  properly 
excluded ;  the  certiticate  was  insufficient.  It  should  have  set  out  an  actual  compli- 
ance with  the  statute. 

In  Stone  vs.  Stillwell  (23  Ark.,  444)  objection  was  made  to  a  deposition 
offered  in  evidence  on  the  ground  that  the  certificate  of  the  justice  of 
the  peace  did  not  state  that  the  deposition  was  reduced  to  writing  iu  his 
presence,  as  required  by  section  13,  chapter  55,  of  the  digest.  The  pro- 
vision of  section  13  is  this : 

Every  witness  examined  in  pursuance  of  this  act  shall  be  awom  to  testify  the  whole 
truth,  and  his  examination  shall  be  reduced  to  writing  in  the  presence  of  the  person 
or  officer  before  whom  the  same  shall  be  taken. 


692  DIGEST    OF    ELECTION    CASES. 

The  court  said : 

The  justice  states  in  his  certificate  "  that  the  examination,  responses,  and  statements 
of  saiil  deponent  were  reduced  to  writing  in  my,  auu  by  the  said  deponent  sworn  to 
and  subscribed  in  my  presence,  at  the  time  and  place  aforesaid,"'  »S:c.  It  is  manifest 
that  the  want  of  the  word  *^ presence"  after  the  word  "  m^/,"  where  it  first  occurs  in 
the  certificate,  was  a  mere  clerical  omission  of  the  justice;  and  taking  the  whole  cer- 
tificate together  it  is  evident  that  he  meant  to  certify  that  the  deposition  was  reduced 
to  writing  in  his  presence. 

But  it  is  argued  that  the  original  stenographic  notes  were  written  out 
in  the  presence  of  the  notary  public,  and  that  this  was  a  compliance 
-with  the  statute.  The  authorities  already  cited  are  not  consistent  with 
this  position.  The  object  is  the  authentication  of  the  testimony  now  on 
file  with  the  Clerk  of  the  House.  And  the  agreement  of  the  parties  only 
extended  to  the  substitution  of  the  long-hand  transcript  of  the  steno- 
graphic notes,  and  did  not  waive  anjthing  but  the  signatures  of  the 
witnesses  thereto.  The  parties  made  no  agreement  that  the  depositions 
in  long-hand  should  be  afterwards  recopied  by  the  contestant  and  his 
agents  out  of  the  presence  of  the  notary,  and  that  these  papers  should 
be  forwarded,  and  the  long-hand  depositions  made  by  the  notary  should 
be  destroyed.  The  part  of  the  agreement  bearing  upon  this  matter  is 
as  follows : 

Fourth.  That  inasmuch  as  both  parties  intend  to  have  the  depositions  of  manj'  of 
the  witnesses  taken  in  short-hand  by  a  stenographer,  which  will  render  it  impossible 
for  such  witnesses  to  subscribe  to  their  depositions  until  the  same  shall  be  written  out, 
which,  in  many  instances,  cannot  be  done  for  some  time  after  such  depositions  shall 
have  been  taken ;  and  inasmuch  as  the  signatures  of  the  witnesses  in  such  cases  could 
only  be  procured  by  requiring  a  second  attendance  of  such  witnesses  at  considerable 
inconvenience  and  expense  to  all  parties  interested;  therefore,  in  all  cases  where  a 
deposition  is  not  subscribed  to  by  the  party  making  the  same  the  signature  of  such 
witness  is  hereby  waived. 

The  contestant,  Mr.  Mackey,  states  that  this  rewriting  of  the  deposi- 
tions was  done,  not  by  agreement  of  the  parties,  but  by  agreement  be- 
tween the  notary,  Hogarth,  and  himself.  But  to  our  minds  this  conduct 
of  a  public  officer  was  a  violation  of  his  plain  duty  under  the  statute,  to 
retain  the  testimony  in  his  own  custody  until  forwarded,  and  this  was 
aggravated,  not  excused,  by  collusion  between  the  officer  and  one  of  the 
parties  without  the  knowledge  or  consent  of  the  other  party. 

We  think,  therefore,  that  the  depositions  substituted  by  the  contest- 
ant and  his  agents  for  the  originals  written  by  Hogarth  should  be  sup- 
pressed. 

We  do  not  consider  that  the  papers  offered  as  United  States  super- 
visors' returns  and  the  tabulated  statement  purporting  to  be  made  by 
the  chief  supervisor  are  admissible  in  evidence  for  the  reasons  following  : 

1.  The  statute,  so  far  as  supervisors  outside  of  the  citj'  of  Charleston 
are  concerned,  does  not  authorize  or  require  such  returns  to  be  made  by 
l)recinct  supervisors.  The  act  of  Congress  (sec.  2029,  U.  S.  Rev.  Stat.) 
prescribes  that  they — 

Shall  have  no  authority  to  make  arrests  or  to  perform  other  duties  than  to  be  in  the 
immediate  presence  of  the  officers  holding  the  election  and  to  witness  all  their  proceed- 
ings, including  the  counting  of  the  votes  and  the  making  of  a  return  thereof. 

It  is  only  necessary  to  call  attention  to  the  opinions  of  the  eminent 
men  of  both  political  parties  who  construed  this  section  at  the  time  of 
its  passage  as  a  measure  of  compromise  between  the  Senate  and  House. 
Their  views  were  exi)ressed  as  follows  : 

In  the  Senate  the  provision  was  explained  by  Mr.  Edmunds,  one  of 
the  managers  on  the  part  of  the  Senate : 

Mr.  Morton.  I  ask  the  Senator  from  Vermont  if  I  understand  correctly  that  this 


MACKEY    VS.    OCONNOR.  593 

simply  makes  the  supervisors  silent  spectators,  without  even  the  power  to  challenge 
a  vote?  ** 

Mr.  Edmunds.  No,  sir ;  they  have  no  power  to  challenge  a  vote  except  that  which 
belongs  to  a  citizen  under  the  existing  laws.  *  *  *  The  House  insisted  upon  hav- 
ing this  provision  put  in  as  a  means  of  composing  their  differences  in  the  other  body, 
to  which  we  were  forced  to  assent  with  a  viewto  getting  to  an  end.  (91  Cong.  Globe 
4495.) 

The  report  of  the  last  conference  committee  in  the  House,  and  the  ex- 
planations of  Mr.  Garfield  and  Mr.  Xiblack,  managers  on  the  part  of  the 
House,  and  of  other  Representatives,  are  printed  on  pages  4453  to  4455 
of  volume  91  of  the  Congressional  Globe : 

Mr.  Garfield.  The  effect  of  this  is  that  the  supervisors  authorized  by  this  act  stand 
by  and  witness  the  proceedings  of  the  election,  and  have  theoflScial  right  to  stand  by, 
so  that,  if  frauds  are  being  perpetrated,  the  Government  of  the  United  States  may 
have  as  witnesses  a  member  of  the  Democratic  party  and  one  of  the  Republican  party 
to  the  facts  in  the  case.' 

Mr.  Shellabarger.  *  »  *  It  seems  to  me,  and  I  suggest  it  as  an  apprehension, 
that  this  strips  these  supervisors  or  inspectors  of  the  power  both  of  challenge  and  also 
of  indorsing  the  certificates  of  election. 

Mr.  Garfield.  That  may  be  true ;  but  even  if  it  be  true,  the  presence  of  these  offi- 
cers, appointed  by  a  judge,  acts  as  a  moral  challenge. 

Jlr.  Brooks.  I  understand  that  they  have  not  the  power  to  give  certificates  of 
election. 

Mr.  Garfield.  I  should  say  clearly  not. 

Mr.  Brooks.  Nor  have  ttiey  any  power  to  make  any  return. 

Mr.  Garfield.  Nothing  of  the  kind. 

Mr.  NiBLACK.  Mr.  Speaker,  the  particular  amendment  under  discussion  with  regard 
to  supervisors  of  election  has  been  one  of  the  most  stubborn  causes  of  difference  be- 
tween the  two  Houses  that  it  has  ever  been  my  fortune  personally  to  observe  in  con- 
nection with  a  committee  of  conference.  We  have  spent,  first  and  last,  some  twelve 
or  fifteen  hours  iu  considering  the  amendments  to  this  bill.  The  greater  portion  of 
the  discussion  of  any  serious  character  has  been  directed  to  this  particular  amend- 
ment. For  mosfr  of  tlie  time  I  despaired  of  the  committee  being  able  to  make  a  report 
which  would  meet  the  views  of  the  majority  of  both  Houses.  From  the  first  I  an- 
nounced the  projwsition  that  I  could  sign  no  report  which  recognized  in  any  degree 
the  principle  of  Federal  interference  in  State  elections.  »  »  »  The  i)ower  of  these 
supervisors  is  reduced  to  that.of  mere  official  witnesses  of  elections,  with  no  other 
power  than  to  make  complaint  before  the  proper  ofliicers  of  the  law,  if  they  think  the 
election  laws  have  been  violated,  *  *  *  j  think  by  allowiug  the  bill  to  be  voted 
on  we  can  save  not  only  an  extra  session,  but  the  continuance  of  this  one  beyond 
nine  o'clock  this  evening. 

Mr.  Kerr.  Under  the  language  of  that  amendment  I  think  it  is  perfectly  clear,  as  a 
question  of  law,  that  these  two  supervising  witnes.ses  will  have  neither  right  nor  au- 
thority to  sign,  or  to  sui)erintend,  or  iu  any  way  to  modify  or  to  change  the  return  of 
the  election.     Tbey  may  merely  stand  by  and  see  how  it  is  conducted. 

2.  No  certificate  of  an  officer  is  admissible  in  evidence  unless  he  is 
required  by  law  to  make  such  certificate,  for  in  such  case  only  is  it  cov- 
ered by  the  sanction  of  his  oath.  And  matters  not  of  record  but  of  fact, 
technically  called  matters  injfais,  cannot  be  certified  by  an  officer,  but 
in  such  case  the  officer  must  testify  as  to  the  matters  of  fact. 

3.  The  papers  purporting  to  be  the  original  returns  of  supervisors  in 
this  case  were  produced,  according  to  tha  record  of  the  case  as  printed, 
by  the  contestant,  Mr.  Mackey,  and  not  by  the  chief  supervisor,  to 
whom  they  are  alleged  to  have  been  made.  If  they  are  the  original  re- 
turns, it  was  a  breach  of  official  duty,  which  cannot  be  presumed  against 
the  chief  supervisor,  to  allow  them  to  pass  from  his  custody  into  the 
hands  of  one  of  the  parties  to  an  election  contest.  In  all  cases  where 
such  returns  are  authorized  by  law  it  is  made  the  duty  of  the  chief 
supervisor  either  to  keep  them  of  record,  as  required  by  section  2026 — 

He  shall  receive,  preserve,  and  file  all  oaths  of  office  of  supervisors  of  election,  and 
of  all  special  deputy  marshals  appointed  under  the  provisions  of  this  title,  and  all  cer- 
tificates, returns,  reports,  and  recordsof  every  kind  and  nature  contemplated  or  made 
requisite  by  the  provisions  hereof,  save  where  otherwise  herein  specially  directed — 

H.Mis.  35 38 


594  DIGEST    OF    ELECTION    CASES. 

or  in  certain  cases  to  forward  the  same  to  the  Clerk  of  the  House  of 
Eepresentatives,  as  required  by  section  2020  : 

And  prior  to  tlie  assembling  of  the  Congress  for  which  any  such  Representative  or 
Delegate  was  voted  for,  he  shall  file  with  the  Clerk  of  the  House  of  Eepresentatives 
all  the  evidence  by  him  taken,  all  information  by  hira  obtained,  and  all  reports  to 
him  made. 

And  section  2031  provides  among  his  fees : 

For  filing  and  caring  for  every  return,  report,  record,  document,  or  other  paper  re- 
quired to  be  filed  by  him  under  any  of  the  preceding  provisions,  &c. 

4.  The  written  portions  of  five  of  the  so-called  original  returns  of  super- 
visors— purporting  to  be  the  returns  of  Calhoun  and  Packsville  precincts, 
in  Clarendon  County ;  of  Hope  Engine-house,  in  Charleston  County  ; 
and  of  Branchville  and  Eowesville,  in  Orangeburg  County — are  in  the 
handwriting  of  Mr.  Mackey,  the  contestant,  and  the  Congressional  re- 
port of  Fort  Motte  precinct,  in  Orangeburg  County,  also.  And  as  to 
one  of  these — that  of  Calhoun  precinct,  in  Clarendon  County — the  figures 
do  not  correspond  with  the  tabulated  statement  for  the  same  precinct, 
purporting  to  be  the  statement  of  the  chief  supervisor,  made  from  the 
returns  filed  with  him ;  so  that  one  or  the  other  is  false.  In  addition, 
none  of  these  papers  introduced  as  the  original  returns  so  filed  bj'  the 
precinct  supervisors  bear  upon  them  any  indorsement  of  their  having 
been  filed  with  the  chief  supervisor,  with  the  exception  of  three  of  them 
(Eecord,  pp.  207-210) ;  and  those  three  are  not  certified  under  seal,  nor 
do  they  appear  to  have  been  introduced  in  evidence  pursuant  to  any 
notice,  or  in  presence  of  the  notary  or  any  of  the  opposite  party  at  any 
taking  of  testimony  in  the  cause. 

5.  The  papers  purporting  to  be  the  statements  of  the  chief  supervisor 
are  not  under  seal,  do  not  purport  to  be  copies  of  records  of  his  oflBce, 
but  simply  a  compilation  of  his  own  of  figures  taken  from  sundry  pa- 
pers, nor  is  there  any  proof  accompanying  them  that  the  person  making 
them  is  the  chief  supervisor. 

THE   CONTESTEE'S   TESTIMONY. 

An  inspection  of  the  manuscript  testimony  on  file  will  show  numerous 
erasures  and  interlineations,  many  of  them  in  the  handwriting  of  the 
contestant,  Mr.  Mackey.  Mr.  Charles  E.  O'Connor's  affidavit  shows 
that  these  changes  were  made  after  Mr.  Dibble's  election  ;  and  the  con- 
testant, Mr.  Mackey,  does  not  claim  or  pretend  that  Mr.  Dibble  had  any 
notice  of  them. 

Mr.  Charles  E.  O'Connor,  in  his  affidavit  (p.  7),  says : 

The  work  of  correcting  this  testimony  was  begun  in  or  about  the  middle  of  July,. 
1881,  and  certainly  not  earlier  than  the  middle  of  June  of  that  year,  and  that  it  con- 
tinued from  time  to  time,  with  frequent  interruiJtions,  during  the  summer  months. 
Deponent  further  says  that  this  work  was  done  solely  upon  the  suggestion  of  the  con- 
testant, &c. 

Mr.  Dibble  was  elected  June  9, 1881,  and  enrolled  by  the  Clerk  of  the 
House  of  Representatives  June  25,  1881. 

The  following  is  one  of  the  numerous  changes  made  in  this  part  of  the 
testimony.  The  inspection  of  the  manuscript  (folios  905, 90G)  shows  that 
this  was  written  out  originally  as  follows  : 

Q.  Was  not  the  number  of  Republican  tickets  seventy-eight  ?  When  yon  first 
opened  the  box  and  counted  the  ballots  in  order  to  ascertain  the  whole  number,  did 
you  not  put  the  whole  number  of  Republican  and  the  whole  number  of  Democratic 
tickets  in  separate  piles  ? — A.  No,  sir ;  because  we  had  such  a  large  white  vote. 


MACKEY    VS.    O  CONNOR.  595 

It  now  appears  in  the  mamiscript,  by  means  of  erasures  "and  interline- 
ations, and  is  printed  as  testimony,  as  follows  : 

Q.  Was  not  tlie  number  of  Republican  tickets  seventy-eight  ? — A.  I  think  it  was. 

The  substituted  answer  "  I  think  it  was  "  is  interlined  in  the  manu- 
script in  the  handwriting  of  jNIr.  Mackey,  and  the  answer  originally 
written  in  the  manuscript,  together  with  the  portion  of  the  question  to 
which  it  was  responsive,  entirely  disappears  by  erasure. 

We  have,  then,  in  this  case  the  testimony  of  the  contestee  in  an  unfin- 
ished condition  at  the  time  of  his  death,  and  such  testimony  as  had  been 
then  taken  changed  after  Mr.  Dibble's  election,  by  the  contestant,  Mr. 
Mackey,  and  another  not  representing  Mr.  Dibble  in  any  way,  and  with- 
out Mr.  Dibble's  knowledge  or  consent ;  and  yet  Mr.  Dibble  is  called 
upon  to  defend  his  seat  upon  the  basis  of  such  testimony,  upon  a  notice 
served  upon  him  six  months  after  his  election,  and  after  all  these  irreg- 
ularities had  been  consummated.  We  cannot  concur  in  such  a  deter- 
mination. 

II. 

But,  as  we  have  already  said,  we  think  Mr.Dibble's  rights  are  not  to 
be  aftected  in  any  way  by  this  record  in  the  case  of  Mackey  vs.  O'Connor. 
We  have  already  given  an  outline  of  the  facts  connected  with  Mr.  Dib- 
ble's admission  to  his  seat,  and  have  quoted  the  words  of  the  resolution 
referring  the  credentials  of  Dibble  and  the  record  of  the  case  of  Mackey 
vs.  O'Connor  to  the  Committee  qn  Elections,  which  was  laid  upon  the 
table  by  the  House,  and  have  also  shown  that  the  House  laid  on  the 
table  the  motion  to  reconsider  the  vote  on  that  resolution. 

Let  us  apply  to  these  facts  the  principles  of  statute  and  parliamentary 
law  which  appear  to  us  to  be  applicable  thereto.  And  in  this  connection 
let  us  cite  from  our  own  recognized  parliamentary  compilation  as  to  the 
effect  of  the  motion  to  reconsider  and  lay  on  the  table.  Smith's  Digest, 
page  292,  concerning  the  ttfotion  "to  lay  on  the  table,"  contains  this 
language : 

In  the  House  of  Representatives  it  is  usually  made  for  the  purpose  of  giving  a  prop- 
osition or  bill  its  "death-blow";  and  when  it  prevails,  the  measure  is  rarely  ever 
taken  up  again  during  the  session.  If  the  motion  to  "reconsider  and  lie"  follow  this- 
motion,  and  be  carried,  it  can  only  be  taken  from  the  table  by  the  unanimous  consent 
of  the  House. 

And  again  {Ibid.,  p.  293) : 

If  a  motion  to  reconsider  be  laid  on  the  table,  the  latter  vote  cannot  be  reconsidered. 
(Journals  3,  27,  p.  334  ;  1,  33,  p.  357.) 

Mr.  Cushing,  in  his  "  Law  and  Practice  of  Legislative  Assemblies," 
after  showing  the  distinction  between  the  English  and  American  laws 
on  the  subject  of  legislative  vacancies,  proceeds  as  follows : 

If  it  [J.  e..  a  vacancy]  occurs  before  the  sitting  or  in  a  recess,  and  the  new  election 
takes  place  without  the  previous  authority  of  the  assembly,  the  existence  of  a  vacancy 
must  be  determined  upon  when  the  member  elected  presents  himself  to  take  his  seat. 

In  the  history  of  vacancies  in  Congress,  there  is  one  case  which  in 
many  respects  resembles  the  present.  In  May,  1867,  George  D.  Blakey 
and  Elijah  Hise  were  opposing  candidates  for  Congress  in  the  third 
Congressional  district  of  Kentucky,  and  four  days  after  the  election  Mr. 
Hise  died.  Mr.  Blakev  appeared  before  the  State  canvassing  board, 
and  claimed  to  have  been  elected.  The  board  decided  that  Mr.  Hise 
had  been  elected.  Congress  assembled  thereafter  on  July  3, 1867 ;  and 
on  July  5, 1867,  a  memorial  of  Mr.  Blakey  was  presented  to  the  House 


596  DIGEST    OF   ELECTION    CASES. 

asking  admissiou  as  a  member  from  the  said  Congressional  district,  and 
the  memorial  and  accompanying  papers  were  referred  to  the  Committee 
on  Elections,  who  were  instructed  by  the  House,  July  11, 1867,  in  relation 
to  taking  evidence  in  regard  to  the  same. 

On  July  20,  1867,  Congress  adjourned  until  November  21, 1867.  Dur- 
ing this  interval,  and  while  the  Committee  on  Elections  had  under  con- 
sideration the  claim  of  Mr.  Blakey  to  the  seat,  a  special  election  was  held 
in  the  third  Congressional  district  of  Kentucky,  under  writs  of  election 
issued  by  the  governor  of  Kentucky,  to  till  the  vacancy  occasioned  by 
the  death  of  Mr.  Hise ;  and  at  such  special  election,  held  August  5,  1867, 
Mr.  Golladay  was  elected,  and  on  November  25, 1867,  presented  his  cre- 
dentials to  the  House. 

An  extended  discussion  followed.  The  distinguished  chairman  of  the 
Committee  on  Elections,  Mr.  Dawes,  after  conceding  the  ordinary  rule 
to  be  that  charges  touching  "  the  legality  of  an  election  are  matters 
which  pertain  to  a  contest  in  the  ordinary  way,  and  should  not  prevent 
a  person  holding  the  regular  certificate  from  holding  his  seat,"  said  : 

I  do  uot  see  how  it  is  possible  to  apply  the  rules  laid  down  there  to  this  case,  with- 
out foreclosing  Dr.  Blakey  from  any  further  iDvestigation  of  the  questiou  of  a  vacancy 
existing  at  that  time.     (Cong.  Globe,  1,  40,  p.  783.) 

Other  members  of  the  House  took  theposition  that  Mr.  Golladay  should 
be  seated  prima  facie,  and  that  Mr.  Blakey  should  be  allowed  to  contest 
with  him  the  right  to  his  seat. 

The  House  adopted  the  view  of  Mr.  Dawes,  and,  instead  of  allowing 
Mr.  Golladay  to  be  sworn,  referred  his  credentials  to  the  Committee  on 
Elections.  Eight  days  afterwards  Mr.  Dawes  presented  the  unani- 
mous report  of  the  Committee  on  Elections  declaring  that  Mr.  Golladay 
was  entitled  to  the  seat.  (Cong.  Globe,  2,  40,  pp.  3,  56.)  This  report 
was  adopted  by  the  House,  and  necessarily  recognized  that  the  writs  of 
election  issued  by  the  governor  of  Kentucky  for  the  special  election, 
were  valid,  even  though  the  House  had  under  consideration  the  ques- 
tion of  the  existence  of  a  vacancy  at  the  time.  For  had  the  writ  of 
election  of  the  governor  of  Kentucky  been  prematurely  issued,  the  elec- 
tion would  have  been  without  legal  sanction,  and  therefore  invalid. 
And  this  decision  of  the  House  was  not  inadvertently  rendered,  for  Mr. 
Blakey  uot  only  mentions  in  his  memorial  to  the  House  that  he  had 
protested  before  the  State  authorities  against  the  holding  of  the  special 
election,  but,  in  addition,  reiterates  it  in  his  remarks  before  the  House. 
But  the  House  refused  to  recommit  the  report  of  the  committee,  or- 
dered the  previous  question,  by  a  vote  of  102  to  22,  and  adopted  the 
recommendation  of  the  committee  without  a  division.  (Cong.  Globe,  2, 
40,  pp.  57,  61.) 

Now,  to  recapitulate.  What  principles  are  involved  in  this  decision  ! 
The  main  doctrine  is,  that  the  right  and  duty  of  the  executive  of  a  State 
to  issue  writs  of  election  to  fill  vacancies  in  the  House,  derived  from 
article  1,  section  2,  of  the  Constitution  of  the  United  States,  in  advance  of 
any  adjudication  by  Congress  on  the  question  of  vacancy  occasioned  by 
death,  is  to  be  exercised  in  contested  cases  as  well  as  in  ordinary  cases, 
thus  applying  to  such  cases  the  same  principles  so  early  settled  in  the 
cases  of  Edwards  (Clark  &  Hall,  92),  Hoge  (Clark  &  Hall,  136),  and 
Mercer  (Clark  &  Hall,  44).  And  while  as  to  the  matter  of  practice  in 
the  case  of  Golladay  there  was  a  difterence  of  opinion  as  to  whether 
the  credentials  ought  to  be  referred  to  the  Committee  on  Elections,  in 
order  to  determine  finally  as  to  the  existence  of  a  vacancy  before  seat- 
ing Mr.  Golladay,  who  held  the  certificate,  or  whether  Mr.  Golladay 
-should  be  sworn,  and  the  right  reserved  to  Mr.  Blakey  to  contest  his 


MACKEY    VS.    O  CONNOR.  597 

seat,  there  was  no  dissent  from  the  proposition  of  Mr.  Dawes,  that  if 
Mr.  GoUaday  were  sworn  in  without  such  reservation,  Mr.  Blakey 
would  be  foreclosed  -'from  any  further  investigation  of  the  question  of 
a  vacancy  existing  at  that  time." 

Xow,  in  the  present  case,  not  only  was  there  no  reservation  of  the 
right  to  contest  Mr.  Dibble's  seat  when  he  was  sworn  in,  but  the  House, 
by  a  very  decided  vote,  tabled  a  motion  to  refer  the  credentials  of  Mr. 
Dibble  and  the  papers  in  Mackey  vs.  O'Connor  to  the  Committee  on 
Elections,  and  tabled  a  motion  to  reconsider  its  vote  thereon. 

AYe  do  not  mean  to  say,  nor  have  we  ever  understood  Mr.  Dibble  to 
contend,  that  it  is  beyond  the  power  of  the  House  to  make  inquiry  into 
his  right  to  his  seat  by  such  means  as  it  may  see  fit  to  adopt  in  an 
investigation  de  novo.  Such  an  investigation  would  give  to  the  sitting 
member  the  opportunity,  which  he  has  never  enjoyed,  of  defending  hi& 
seat  by  pleadings  of  his  own,  and-  such  proofs  as  he  may  be  disposed 
to  otter  in  his  cause.  It  must  be  borne  in  mindt  hat  by  the  action  of 
the  House  itself  Mr.  Dibble  was  placed  in  full  possession  and  enjoy- 
ment of  the  office  of  member,  on  December  5,  1881.  This  possession 
was  clear  from  any  qualification,  reservation,  or  condition  ;  it  was  as 
absolute  as  the  possession  of  any  member  on  the  floor.  Can  it  be  said 
a  contest  was  pending  in  the  case  of  Mackey  rs.  O'Connor  ?  The  an- 
swer is  that  the  House  had  decisively  given  "its  death-blow"  to  the  mo- 
tion to  make  Mr.  Dibble  a  party  to  that  contest  before  he  was  sworn  in. 

It  is  premature  to  discuss  and  to  pass  judgment  upon  the  eflfect  of 
the  election  of  November,  1880,  upon  the  special  election  of  June,  1881^ 
because  it  is  a  mere  speculative  inquiry,  until  by  some  order  of  the 
House,  which  order  has  never  yet  been  made,  the  sitting  member  is 
placed  in  the  position  of  a  party  to  a  contest,  either  under  the  statute 
or  under  a  special  order  of  the  House  adopted  for  the  specific  case. 

If  we  look  at  the  statute  we  find  the  following  language  : 

Sec.  105.  Whenever  any  person  intends  to  contest  an  election  of  any  member  of  the 
House  of  Representatives  of  the  United  States,  he  shall,  within  thirty  days  after  the 
result  of  such  election  shall  have  been  determined  by  the  officers  or  board  of  canvass- 
ers authorized  by  law  to  determine  the  same,  give  notice,  in  writing,  to  the  member 
whose  seat  he  designs  to  contest,  of  his  intention  to  contest  the  same,  and  in  such  no- 
tice shall  specify  particularly  the  grounds  upon  which  he  relies  in  the  contest. 

Section  lOG  provides  for  an  answer  by  the  member  thus  served  with 
notice.  Section  107  provides  for  the  taking  of  testimony,  and  incident- 
ally, but  without  doubt,  defines  the  term  member  to  mean  "  returned 
member." 

Now,  there  is  nothing  in  the  statute  to  limit  its  application  to  gen- 
eral in  contradistinction  to  special  elections.  "  To  contest  an  election 
of  any  member"  is  broad  and  comprehensive ;  and  in  this  category 
Mr.  Dibble,  as  a  "  returned  member,"  certainly  may  be  embraced.  Mr. 
Dibble  was  certainly  elected  at  an  election  regularly  held  according  to 
law.  The  cases  of  Hoge  (Clark  &  Hall,  136),  Edwards  (Clark  & 
Hall,  92),  and  Mercer  (Clark  &  Hall,  44),  and  the  case  of  Blakey  vs. 
GoUaday  settle  that.  The  action  of  the  House  in  seating  Mr.  Dibble 
recognizes  the  fact,  and  puts  it  beyond  disimte.  It  is  unnecessary  to 
cite  authorities  to  show  that  questions  concerning  the  legality  of  an 
election  are  proper  matters  of  contest  under  the  statute ;  they  have 
been  so  treated  in  numerous  cases. 

And  when  we  consider  that  Mr.  O'Connor,  the  "retnrnetl  member" 
of  the  November  election,  had  a  right  to  a  seat  only  so  long  as  he 
lived,  and  had  no  inheritable  or  transmissible  interest  to  be  afifected 
after  his  death,  it  is  enough  to  state  that  a  contest  for  his  seat  after  his. 


598  DIGEST    OF    ELECTION    CASES. 

death  is  a  contest  for  something  that  had  ceased  to  exist.  The  only 
relation  that  could  exist  between  himself  and  auy  one  that  succeeded 
him  was  a  relation  of  time,  not  a  relation  of  pri%ity.  It  cannot  be 
said  that  because  Mr.  O'Connor  was  elected  for  a  term  of  two  years  he 
had  a  right  in  himself  and  his  privies  for  two  years  whether  he  li%"ed 
or  died.  He  only  had  a  right  for  two  years,  provided  he  should  live ; 
the  very  fact  of  his  death  creating  a  vacancy  shows  that  his  right  was 
absofutely  gone  at  his  death.  And  for  any  one  else  to  have  or  claim  a 
right  the  original  granting  i)ower,  i.  e.,  the  people,  had  to  be  invoked, 
and  they  alone  had  the  right  to  bestow  the  remaiuder  of  the  term.  In 
law  the  case  of  a  suit  against  a  life  tenant  is  analogous.  Can  any  one 
claim  that  where  one  of  two  litigants  of  a  close — the  one  in  possession — 
dies,  and  another  person  enter  into  possession  of  the  disputed  terri- 
tory under  a  fresh  grant  from  the  sovereign,  that  the  tenant  thus  enter- 
ing can  be  ousted  upon  the  proceedings  had  against  his  predecessor, 
such  predecessor  being  neither  his  ancestor  or  grantor,  but  simply  a 
life  tenant  ?  And  shall  the  right  of  a  member  of  this  House  to  his  seat, 
a  right  held  to  be  a  right  of  property,  be  decided  on  principles  antago- 
nistic to  those  which  govern  the  decisions  of  other  rights  of  projterty? 
We  think  not. 

Eecurring  to  the  statute,  we  think  it  a  reasonable  construction  of  the 
same,  when  we  come  to  the  conclusion  that  Mr.  Dibble,  as  the  returned 
member  of  the  House,  was  entitled  to  the  notice  required  thereunder, 
in  like  maner  as  a  member  elected  and  returned  at  a  general  election. 
One  thing  is  certain,  that  it  was  in  the  power  of  Mr.  Mackey  to  serve 
such  notice,  and  to  state  as  his  grounds  the  same  reasons  he  now  ad- 
vances for  contesting  the  election  of  Mr.  Dibble,  and  if  the  evidence 
taken  in  the  previous  contest  of  Mackey  vs.  O'Connor  were  competent 
in  the  new  case,  he  had  the  opportunity  of  submitting  it  on  notice,  as 
evidence  in  a  contest  against  Mr.  Dibble  thus  inaugurated,  and  we  ftiil 
to  find  any  statutory  means  by  which  Mr.  Dibble,  after  his  election, 
could,  by  any  act  of  his,  become  a  party  to  tlie  case  of  Mackey  vs. 
O'Connor. 

This  being  the  case,  and  the  House  having  seated  Mr.  Dibble,  is  there 
any  precedent  in  law  or  in  the  decisions  of  this  House  in  contested  cases, 
whereby  the  party  in  i)ossession  of  his  seat  should  go  out  to  hunt  an 
adversary  ?  Is  he  to  be  the  actor  in  any  way  ?  We  fail  to  find  any  such 
precedent,  and  can  only  come  to  the  conclusion  that  Mr.  IMackey,  hav- 
ing neglected  to  avail  himself  of  the  opportunity  afltorded  him  by  the 
terms  of  the  statute,  whereby  he  could  liave  inaugurated  a  contest  in 
the  usual  form,  in  the  first  instance  either  willfully  or  mistakenly  pre- 
vented Mr.  Dibble  from  being  a  paity  to  the  issues  ht;  is  now  trying  to 
force  upon  him. 

Failing  to«find  in  the  statute  any  mode  whereby  Mr.  Dibble  could  be 
made  a  party  to  the  case  of  Mackey  vs.  O'Connor,  and  finding  in  it  a 
mode  whereby  Mr.  Mackey  might  have  made  the  issues  with  Mr.  Dibble, 
on  which  he  now  invokes  the  judgment  of  the  House,  but  did  not  so  take 
issue  with  Mr.  Dibble,  we  cannot  come  to  the  conclusion  that  the  usual 
resolution  of  reference  to  the  Committee  on  Elections,  of  contested  cases, 
adopted  December  21, 1881,  operated  to  revive  the  case  of  Mackey  vs. 
O'Connor,  which  had  received  "its  deathblow"  by  the  action  of  the 
House  itself  over  two  weeks  previously  to  that  time.  Such  resolution 
certainly  did  not  make  Mr.  Dibble  a  party  to  the  case  of  Mackey  vs. 
O'Connor;  and  we  fail  to  find  any  action  of  the  House  which  at  any 
time  had  that  eflect.  It  therefore  seems  to  us,  that  if  the  case  is  within 
the  statute,  then  Mr.  Mackey  has  neglected  to  give  the  notice  [)rescribed 


MACKEY    VS.    O'CONNOR.  599 

by  the  statute  to  be  given  to  the  member  whose  "election"  is  to  be  con- 
tested ;  and,  on  the  other  hand,  if  the  case  be  outside  of  the  statute,  the 
House  has  never  taken  any  order  for  proceediugs  in  the  matter  against 
Mr.  Dibble,  the  sitting  member,  and  without  such  order  the  committee 
are  without  jurisdiction  to  act  concerning  Mr.  Dibble  in  the  premises, 
having  neither  the  statute  nor  any  precedents  of  the  House  on  which  to 
support  such  claim  for  jurisdiction. 

Under  that  provision  of  the  Constitntion  which  makes  the  House  of 
liepresentatives  the  judge  of  the  election,  returns,  and  qualifications 
of  its  members,  the  House  may  adjudicate  the  question  of  right  to  a 
seat  in  either  of  the  four  following  cases :  (1)  In  the  case  of  a  contest 
between  a  contestant  and  a  returned  member  of  the  House,  instituted 
iii  accordance  with  the  provisions  of  title  2,  chapter  8,  of  the  Revised 
Statutes ;  (2)  in  the  case  of  a  protest  by  an  elector  of  the  district  con- 
cerned ;  (3)  in  the  case  of  a  protest  by  any  other  person ;  and  (4)  on 
tlie  motion  of  a  member  of  the  House.  The  proceeding  in  the  first  of 
these  cases  is,  by  the  Eevised  Statutes,  made  a  proceeding  inter  partes 
— a  suit  or  action  in  which  the  contestant  is  plaintiff  and  the  returned 
Eepresentative  defendant. 

A  case  adjudicated  by  the  House  on  the  protest  of  an  elector,  or  other 
person,  or  on  the  motion  of  a  Eepresentative,  is  not  an  action  inter  par- 
ies. It  is  a  ijroceeding  under  the  Constitution,  and  not  under  the 
statute. 

The  action  inter  partes  provided  for  by  the  Eevised  Statutes  abates 
on  the  death  of  either  party.  While  the  power  of  the  House  to  adjudi- 
cate any  question  of  title  involvetl  in  that  action  survives,  the  action 
itself  abates  upon  the  death  of  either  party  thereto. 

It  follows  that  the  contest  of  Mackey  vs.  O'Connor  abated  on  the  death 
of  Mr.  O'Connor.  That  contest  was  an  action  inte^'  partes.  It  was  the 
technical  action  specially  provided  for  in  the  Eevised  Statutes. 

If  the  House  shall  hereafter  adjudicate  any  of  these  questions,  in  a 
proceeding  against  Mr,  Dibble,  it  will  have  the  power,  under  the  Con- 
stitution, to  provide  the  rules  for  such  adjudication. 

When  the  House  undertakes  the  adjudication  of  the  right  of  a  mem- 
ber to  his  seat  on  the  protest  of  an  elector  or  other  person,  or  on  the 
motion  of  a  Eepresentative,  it  does  not  look  to  the  statutes  for  its  rules 
of  i)rocedure ;  it  i)rescribes  its  own  rules,  in  the  exercise  of  its  unques- 
tionable constitutional  power.  If  it  finds  any  of  the  rules  ijrescribed 
by  law  for  technical  contests  available  and  useful  in  the  case  it  adopts 
them.  Such  rules  then  have  force,  not  because  found  in  the  statutes,' 
but  because  adopted  by  the  House.  But  this  constitutional  power  of 
the  House  to  prescribe  the  rules  for  such  adjudications  is  not  an  abso- 
lute or  undefined  power  to  be  arbitrarily  exercised  by  the  House.  Like 
every  other  constitutional  power  of  the  House,  it  is  to  be  exercised  in 
subordination  to  those  principles  of  justice  which  lie  at  the  root  of  the 
Constitution  and  send  their  influences  through  all  its  provisions.  For 
an  adjudication  made  on  the  protest  of  an  elector  or  other  person,  or 
on  motion  of  a  Representative,  the  House  has  no  constitutional  right  to 
prescribe  any  rules  which  shall  bind  the  sitting  member  by  pleadings 
or  averments  which  he  never  made,  by  the  testimony  of  \yitnesses  whom 
he  never  had  an  opportunity  to  examine  or  cross-examine,  by  stipula- 
tions or  admissions,  or  waivers  which  he  never  made,  or  by  laches  which 
he  never  incurred.  The  House  has  no  right  to  make  the  title  of  a  Eep- 
resentative to  his  seat  subject  to  the  acts  or  omissions,  the  diligence  or 
laches,  the  wisdom  or  folly,  of  another  man. 

But  if  it  were  conceivable  that  the  contest,  which  is  by  the  Revised 


600  DIGEST    OF    ELECTION    CASES. 

Statutes  80  clearly  made  a  proceeding  inter  partes,  could  survive  one  of 
the  parties,  it  would,  nevertheless,  be  certain  that  when  the  House 
seated  Mr.  Dibble  on  his  credentials  that  contest  was  dismissed  and 
passed  from  the  jurisdiction  of  the  House.  From  the  time  when  Mr, 
Dibble  took  his  seat,  in  pursuance  of  the  resolution  of  the  House,  it  wa» 
Ms  right  to  that  seat  which  was  to  be  assailed  by  any  contestant,  or  claim- 
ant, or  protestaut.  Since  that  time  Mr.  (J 'Connor's  right  has  been  a  ques- 
tion for  the  adjudication  of  the  House,  not  because  it  was  once  involved 
in  the  contest  of  Mackey  vs.  O'Connor,  but  because  it  is  now  involved  in 
the  question  of  Mr.  Dibble's  right  to  the  seat  which  he  occupies.  When 
the  House  admitted  Mr.  Dibble  to  the  seat  without  condition  or  reserva- 
tion it  invested  him  with  the  right  which  belongs  to  other  sitting  mem- 
bers under  the  Constitution  and  the  law  to  receive  due  notice  of  any 
proposed  contest,  to  have  the  opportunity  to  answer,  to  examine  his 
own  witnesses,  to  cross-examine  those  of  his  opponents,  and  to  be  con- 
cluded by  no  acts,  omissions,  stipulations,  laches,  or  waivers  except  his 
own. 

It  may,  perhaps,  be  suggested  that  the  contest  of  Mackey  vs.  O'Con- 
nor was  revived  and  referred  to  the  committee  by  the  resolution  which 
•was  adopted  December  22,  1881,  in  the  following  words: 

Besolred,  That  all  of  the  testimony  and  all  other  papers  relating  to  the  rights  of 
members  to  hold  seats  on  this  floor  in  contested  eases  now  on  file  with  the  Clerk  of  this 
House  or  in  his  possession,  and  all  memorials,  petitions,  and  otlier  papers  now  in  the 
possession  of  this  House,  or  under  its  control,  relating  to  the  same  subject  not  other- 
wise referred,  be,  and  the  same  hereby  are,  referred  to  the  Committee  on  Elections, 
and  ordered  to  be  printed. 

But  the  answer  is  obvious.  The  resolution  did  not  refer  to  the  com- 
mittee papers  which  related  to  abated  contests,  but  only  those  which 
related  to  pending  contests.  It  did  not  revive  dead  suits.  It  only  re- 
ferred to  the  committee  jmpers  which  related  to  existing  suits.  An 
order  of  reference  places  a  i)aper  before  the  committee  for  what  it  is 
worth.  It  imparts  no  new  legal  character  or  quality  to  the  paper.  It  does 
not  transform  an  answer  in  the  case  of  Mackey  vs.  O'Connor  into  an  an 
swer  in  the  case  of  Mackey  vs.  Dibble.  It  does  not  transform  illegal  evi- 
dence into  legal  evidence.  It  does  not  transform  a  witness  for  or  against 
Mr.  O'Connor  into  a  witness  for  or  against  Mr.  Dibble.  It  does  not  trans- 
form an  admission,  stipulation,  or  waiver  by  Mr.  O'Connor  into  an  ad- 
mission, stipulation,  or  waiver  by  Mr.  Dibble.  It  does  not  transform  a 
dead  suit,  to  which  the  papers  relate,  into  a  revived  and  pending  action. 

The  tirst  and  only  notice  of  contest  of  his  seat  ever  served  on  the  sit- 
ting member,  Mr.  Dibble,  by  Mr.  Mackey,  was  not  served  until  January 
4,1882.  Thereupon  Mr.  Dibble  filed  with  the  committee  a  protest  against 
the  committee's  proceeding  to  consider  and  act  upon  the  case  of  ^lackey 
vs.  O'Connor,  because  it  was  evident  from  the  notice  served  by  Mr. 
Mackey  that  ic  was  the  intention  of  the  contestant  to  assail  his  right  to 
his  seat  by  means  of  a  case  to  which  he  was  not  a  party.  But  a  majority 
of  the  committee  decided  to  proceed  with  the  case,  and  overruled  the 
protest  of  the  sitting  member.  For  the  reasous  already  set  forth,  we 
are  of  the  opinion  that  the  protest  should  have  been  sustained. 

We  cannot  concar  in  establishing  as  a  precedent  that  a  member  of 
this  House,  duly  admitted  to  his  seat,  can  be  rightfully  removed  there- 
from without  any  opportunity  of  defending  his  title  thereto,  either  by 
pleading  his  defense,  or  by  introducing  evidence  in  his  behalf.  Xor  can 
we  subscribe  to  the  opinion  that  the  Committee  on  Elections,  under  its 
ordinary  powers,  can  summon  a  member  of  this  House  to  defend  a  cause 
in  which  he  is  not  the  contestee,  in  which  he  is  in  no  way  named  as  a 
party,  and  in  which  the  House  has  not  only  not  required  him  to  appear^ 


MACKEY   VS.    O'CONNOR. 


601 


but'has  by  its  action  declined  to  make  him  a  party.  If  such  a  prece- 
dent is  to  be  established,  it  will  be  giving  to  the  Committee  on  Elections 
jurisdiction  to  act  outside  of  the  statute,  and  to  inquire  as  to  the  seat 
of  any  member  on  the  floor  at  its  discretion,  and  without  the  order  of 
the  House. 


III. 

A  few  words  as  to  th3  claim  of  the  contestant  concerning  the  prima 
facie  case. 

On  pp.  10,  11  of  the  printed  Kecord,  we  find  that  the  contestant  him- 
self introduced  the  following  certificate : 

State  of  South  Carolina, 

Office  of  Secretary  of  State  : 
I,  R.  M.  Sims,  secretary  of  state,  do  hereby  certify  that  the  following  is  a  correct 
statement  of  the  total  number  of  votes  cast  in  the  several  counties  comprising  the 
second  Congressional  district  of  South  Carolina,  and  also  of  the  votes  cast  for  a  mem- 
ber of  Congress  from  said  district  at  the  general  election  held  November  2d,  1880,  as 
certified  to  by  the  State  board  of  canvassers : 


Total  No. 

M.  P. 
O'Connor. 

E.  W.  M. 
Maokey. 

19,541 
6,339 
3,986 

11,429 
3,627 
2,513 

8,112 

2,712 

1,473 

29,866 

17,  569              12,  297 

Witness  my  hand  and  the  seal  of  State,  at  Columbia,  this  20th  day  of  January,  A. 
D.  1881,  and  in  the  105th  year  of  American  Independence. 

[SEAL.]  R.  M.  SIMS, 

Sec.  State. 

In  his  brief  (p.  4)  he  claims  that  certain  boxes  were  not  counted  by 
the  county  canvassers,  and  also  claims  the  vote  thereat  to  have  been  as 
below  copied  from  said  brief.  Without  conceding  the  sufficiency  of  the 
evidence  of  the  said  votes,  for  reasons  hereinbefore  stated,  we  give  hi» 
figures  as  claimed  in  his  brief,  page  4,  as  follows : 


M.  P. 

O'Connor. 

E.  W.  M. 

Mackey. 

119 
90 
63 

161 
16 
5 
11 
40 
85 

286 
69 

511 

57» 

380 

385- 

Brick  Chnrch                                        

732 

Ten-mile  Hill 

60S 

Ul»ck  Oak          

393 

254 

279 

700 

212 

895 

5,022 

Applying  these  figures  to  the  vote  canvassed,  we  have  the  following 
summary,  viz: 


€02  DIGEST  OF  ELECTION  CASES. 


O'Connor. 

Mackey. 

17  569 

^9  907 

895  '              5  022 

18,464               17,319 

This  still  leaves  O'Connor  a  majority  of  1,145  on  the  prima  facie  case. 

The  contestant  attempts  to  overcome  this  by  secondary  evidence  of 
various  kinds;  but  we  find  in  the  way  of  considering  this  secondary 
evidence  the  objections  heretofore  alleged,  going  to  the  authenticity 
and  genuineness  of  the  testimony  as  tiled.  It  would  be  extremelj"  dan- 
gerous to  establish  as  a  precedent  the  admissibility  of  parol  testimony 
to  overturn  the  ofl&cial  returns  of  an  election,  and,  in  addition,  to  accept 
a  copy  of  such  parol  testimony,  made  by  one  of  the  parties  and  his 
■agents,  in  place  of  the  original  testimony  by  such  party  destroyed. 

But  the  contestant  goes  further,  and  claims  a  majority  of  9,278 ;  and 
in  order  to  arrive  at  this  conclusion,  be  takes  for  granted  that  the  bal- 
lot-boxes were  stuffed  by  Democrats,  but  that  every  Kepublican  voted 
but  a  single  vote,  in  the  face  of  the  fact  that  the  very  papers  on  which 
he  relies  as  supervisor's  returns  to  establish  his  case  state  that  Repub- 
lican ballots  were  found  in  the  boxes  when  opened  with  other  Eepub- 
lican  ballots  folded  Inside  at  ten  different  polling  precincts,  viz:  In 
Charleston  County,  at  court-house  (p.  28),  Marion  engine-house  (p.  75), 
Henderson's  store  (p.  92),  Pinopolis  (j).  124),  and  Mount  Pleasant  (p. 
137);  in  Orangeburg  County,  at  Jamison's  (p.  226),  Washington  Semi- 
nary (p.  243),  and  Cedar  Grove  (p.  260) ;  in  Clarendon  County  at  Fork 
(p.  314),  and  Jordan's  (p.  330);  and  also  in  face  of  the  fact  that  the  Re- 
publican supervisor  of  Orangeburg  poll,  one  of  his  own  witnesses,  testi- 
fies that  two  Republicans  were  caught  in  the  act  of  voting  double  tick- 
ets at  that  poll  (p.  232). 

In  addition  to  this,  the  testimony  of  a  manager  at  Griffin's  poll  (p.  637), 
introduced  in  behalf  of  contestee,  and  uncontradicted,  is  to  the  effect 
that  when  the  box  was  opened  51  Republican  tickets  were  discovered 
folded  together  in  sundry  packages. 

We  cite  these  merely  to  show  that  this  claim  of  the  contestant,  so  in- 
trinsically improbable,  is  defeated  by  the  very  papers  by  which  he  is 
attempting  to  overthrow  the  returns  of  the  election,  as  declared  by  the 
lawful  authorities  of  the  State. 

This  extraordinary  creation  of  a  majority  for  the  contestant  does  not 
appear  to  be  equaled  in  any  instance  in  our  knowledge,  unless  it  be  in 
the  case  of  Buttz  vs.  Mackey,  in  the  Forty-fourth  Congress,  in  which 
the  present  contestant  was  contestee,  and  in  which  his  seat  was  vacated 
on  proof  {inter  alia)  that  25  of  his  supporters  deposited  for  him  over  600 
votes,  by  voting  for  him  twice  at  every  precinct  but  one  in  the  City  of 
Charleston.     (See  Smith's  Dig.  Elec.  Cases,  p.  685.) 

The  undersigned,  for  the  foregoing  reasons,  recommend  the  adoption 
of  the  following  resolution,  as  a  substitute  for  the  resolutions  reported 
by  the  majority  of  the  committee : 

Resolved.,  That  the  contest  entitled  E.  W.  INI.  Mackey  vs.  M.  P.  O'Con- 
nor, for  a  seat  in  the  Forty-seventh  Congress  of  the  United  States  for 
the  second  Congressional  district  of  South  Carolina,  be  dismissed. 

S.  W.  MOULTON. 
G.  ATHERTON. 


STOLBRAXD    VS.    AIKEX.  603 

CARLOS  J.  STOIiBRAXD  vs.  D.  WYATT  AIKEX. 

Third  Congressional  District  of  South  Carolina. 

In  this  case  the  testimony  on  behalf  of  contestant  was  taken  before  a  United  States 
commissioner,  and  the  contestee  at  the  time  objected  and  excepted  to  the  com- 
petency of  the  officer. 

Held,  That  the  officers  authorized  to  take  testimony  in  cases  of  contested  elections  are 
specially  designated  by  statute,  and  United  States  commissioners  not  being  so 
designated  cannot  act  without  the  written  consent  of  the  parties.  Contest  dis- 
missed. 

The  House  adopted  the  report.  « 


April  G,  1882.— Mr.  G.  W.  Jones,  from  the  Committee  on  Elections, 
submitted  the  following 

EEPORT: 

The  Committee  on  Elections^  to  idiom  teas  referred  the  case  of  C.  J.  Stol- 
brand  vs.  D.Wyatt  Aiken,  from  the  third  Congressional  district  of  South 
Carolina,  having  had  the  same  under  consideration,  respectfully  submit 
the  following  report : 

All  the  testimony  in  the  case  was  taken  in  behalf  of  the  contestant 
before  E.  W.  Stoeber,  United  States  commissioner.  The  contestee,  at 
the  threshold,  excepted  to  the  competency  of  the  officer. 

The  following  are  the  statutory  provisions  applicable  to  the  question 
raised  by  the  exception. 

Revised  Statutes,  p.  19 : 

Section  110.  When  any  contestant  or  returned  member  is  desirous  of  obtaining 
testimony  resi^ecting  a  contested  election,  he  may  apply  for  a  subpa?na  to  either  of 
the  following  officers  who  may  reside  within  the  Congressional  district  in  which  the 
election  to  be  contested  was  held: 

First.  Any  judge  of  any  court  of  the  United  States. 

Second.  Any  chancellor,  judge,  or  justice  of  a  court  of  record  in  the  United  States. 

Third.  Any  nuiyor,  recorder,  or  inttndent  of  any  town  or  city. 

Fourth.  Any  register  in  bankruptcy  or  notary  public. 

Sec.  111.  The  officer  to  whom  the  application  authorized  by  the  preceding  section 
is  made  shall  thereupon  issue  his  writ  of  subpcena,  directed  to  all  such  witnesses  as 
shall  be  named  to  him,  requiring  their  attendance  before  him  at  some  time  and  place 
named  in  the  subpoiua,  in  order  to  be  examined  respecting  the  contested  election. 

Sec.  112.  In  case  none  of  the  officers  mentioned  in  section  one  hundred  and  ten  are 
residing  in  the  Congiessional  district  from  which  the  election  is  proposed  to  be  con- 
tested, the  application  thereby  authorized  may  be  made  to  any  two  justices  of  the 
l>eace  residing  within  the  district ;  and  they  may  receive  such  application  and  jointly 
proceed  upon  it. 

Sec.  113.  It  shall  be  competent  for  the  parties,  their  agents  or  attorneys  authorized 
to  act  in  the  premises,  hy  consent  in  writing,  to  take  depositions  without  notice;  also,  by 
such  written  consent,  to  take  depositions  (whether  upon  or  without  notice)  before  any 
officer  or  officers  authorized  to  take  depositions  in  common  law,  or  civil  actions,  or  in 
chaucerj-,  by  either  the  laws  of  the  United  States  or  of  the  State  in  which  the  same 
may  be  taken,  and  to  waive  proof  oi  the  official  character  of  such  officer  or  officers. 
Any  written  consent  given  as  aforesaid  shall  be  returned  with  the  depositions. 

The  officers  authorized  to  take  testimony  are  specially  designated. 


604  DIGEST    OF    ELECTION    CASES. 

It  is,  however,  specially  provided  that  *'by  written  consent"  testimony 
may  be  taken  before  certain  other  officers  mentioned.  United  States 
commissioners  are  not  mentioned  in  the  first  class,  and,  if  inclnded  in 
the  latter,  cannot  act  without  the  written  consent  of  the  parties. 

It  is  apparent  that  the  exception  is  well  taken,  and  must  be  sus- 
tained. 

It  is  insisted  that  the  House  of  Representatives,  in  judging  of  the  elec- 
tions, qualifications,  and  returns  of  its  members,  is  not  bound  by  the 
rigid  rules  of  judicial  procedure.  This  is  true,  but  applies  only  to  ex- 
ceptional cases,  not  provided  for  by  the  "  rules  prescribed."  It  would 
be  worse  than  idle  to  prescribe  rules  if  they  may  be,  willfully  and  unneces- 
sarily disregarded. 

This  view  is  decisive  of  the  case,  and  renders  unnecessary  further 
statement  of  it. 

We  recommend  the  adoption  of  the  following  resolution : 

Resolved,  That  C.  J.  Stolbrand  have  leave  to  withdraw  his  papers. 


GEORGE  Q.  CAN?^ON  vs.  ALEBN  G.  CAMPBEEI.. 

Territory  of  Utah. 

Contestant  alleges  that  he  received  18,568  votes  against  1,357  cast  for  contestee,  and 
was  legally  elected  Delegate  from  the  Territory  of  Utah. 

Contestee  denies  that  18,568  votes  were  legally  cast  for  contestant ;  that  contestant 
was  not  eligible  or  qualified  to  be  elected  or  serve  as  snch  Delegate  because  he 
was  an  unnaturalized  alien ;  and  because  he  was  a  polygamist  living  and  cohabit- 
ing with  plural  wives. 

Meld,  That  contestant  did  receive  the  highest  number  of  votes  cast.  Certificates  of 
returns  of  elections  made  by  county  canvassing  boards  to  the  secretary  of  the 
Territory,  under  the  Territorial  law,  constitute  the  proper  mode  to  be  pursued  in 
the  Territories  in  respect  to  the  election  of  Delegates ;  and  such  records  duly  au- 
thenticated by  a  seal  will  be  received  in  evidence  without  having  been  first  in- 
troduced in  evidence  before  the  magistrate  who  takes  and  certifies  the  deposi- 
tions. 

Contestant  was  duly  naturalized  as  appeared  by  his  certificate  of  naturalization  and 
by  the  record  of  the  court,  which  latter  cannot  be  collaterally  questioned. 

Delegates  are  the  creatures  of  statute,  and  the  legislative  branch  of  the  Government 
may  abolish  the  office  altogether. 

The  House  may  at  any  time  by  a  majority  vote  exclude  from  the  limited  membership 
which  it  uow  extends  to  Delegates  from  Territories  any  person  whom  it  may  for 
any  reason  judge  to  be  unfit  to  hold  a  seat  as  a  Delegate.  And  contestant,-  hav- 
ing admitted  that  he  has  plural  wives,  and  that  he  teaches  and  advises  others  to 
the  commission  of  that  offense,  he  should  be  excluded  from  the  House. 

Contestee,  however,  having  only  received  a  minority  of  the  votes  cast,  was  not  elected, 
and  the  seat  is  declared  vacant. 

The  House  adopted  the  majority  report. 


CANNON    VS.    CAMPBELL.  605 

February  28, 1882. — Mr.  Calkins,  from  the  Committee  on  Elections 
submitted  the  followiug 

REPORT: 

TN  the    :MATTER    of   the    contest    of   GEORGE  Q.  CANNON  AGAINST 
AXLEN   G.    CAMPBELL,   TERRITORY.  OF  UTAH. 

VIEWS  OF  MR.  CALKINS. 

Your  committee,  to  whom  was  referred  the  said  contest  between  the 
parties  for  the  seat,  having  had  the  same  under  consideration,  beg  leave 
to  make  the  following  report : 

On  the  20th  day  of  January,  1881,  from  the  city  of  Washington,  the 
contestant,  Geo.  Q.  Cannon,  served  on  the  contestee  the  following  notice 
of  contest : 

Washingtox,  D.  C,  January  20,  1882. 
Allen  G.  Campbell,  Esq. : 

Sir  :  I  have  the  honor  to  notify  yon  that  I  shall  contest  your  right  to  hold  a  seat  in 
the  House  of  Eepreseutatives  of  the  Forty-seventh  Congress  of  the  United  States  as 
Delegate  from  the  Territory  of  Utah,  and  also  your  right  either  to  be  sworn  or  en- 
rolled, or  to  hold  a  certificate  of  election  as  such  Delegate,  on  the  following  grounds: 

1.  That  the  returns  of  the  election  of  Delegate  to  the  Forty-seventh  Congress  of  the 
United  States,  held  on  the  '2d  day  of  November,  1880,  in  the  several  counties  of  the 
Territory  of  Utah,  which  were  prepared  and  forwarded  to  the  secretary  of  the  Terri- 
tory, itnder  sections  23  and  24  of  the  compiled  laws  of  the  Territory  of  Utah,  copies 
of  which  returns,  marked  resi>ectively  A,  B,  C,  D,  &c.,  are  hereto  annexed,  showed, 
as  the  fact  was,  that  18,568  votes  were  legally  cast  for  me  at  said  election ;  that  only 
1,357  votes  were  cast  for  you,  and  that  only  8  votes  were  cast  for  all  other  candidates, 
and  that  I  was  therefore  legally  elected  to  said  office  of  Delegate  from  the  Territory  of 
Utah  in  the  Forty-seventh  Congress,  and  was  also  entitled  to  receive  the  certificate  of 
election,  and  to  be  enrolled  and  sworn  as  such  Delegate.    . 

2.  That  said  returns  showed,  as  the  fact  was,  that  you  received  less  than  one-thir- 
teenth of  the  votes  legally  cast  at  said  election,  and  therefore  were  not  entitled  to  hold 
the  said  office  of  Delegate  from  the  Territory  of  Utah  in  the  Forty-seventh  Congress, 
or  to  be  enrolled  or  sworn  as  such  Delegate,  or  to  receive  the  certificate  of  election  to 
said  office. 

3.  That  the  action  of  the  governor  of  the  Territory  of  Utah  in  withholding  the 
certificate  of  election  fr'om  me,  and  giving  it  to  you,  was  illegal  and  fraudulent. 

Very  respectfully, 

GEO.  Q.  CANNON. 

The  exhibits  attached  to  and  forming  a  part  of  the  notice  of  contest 
were  certificates  made  by  the  secretary  of  Utah  Territory,  under  the 
seal  of  the  Territory. 

On  the  2Gth  day  of  February,  1881,  Mr.  Campbell,  the  contestee,  an- 
swered the  notice  so  served  on  him,  in  the  following  words : 

Salt  Lake  City,  Utah, 

February  HGth,  1881. 
George  Q.  Caxxox,  Esq. : 

Sir  :  To  your  notice  of  January  20th,  1881,  served  ou  me  on  the  4th  day  of  the  pres- 
ent month," to  the  effect  that  you  will  contest  my  right  to  hold  a  seat  in  the  House  of 
Representatives  of  the  Forty-seventh  Congress  of  the  United  States  as  Delegate  from 
the  Territory  of  Utah,  &c.,  1  have  the  honor  to  answer  in  respect  to  the  facts  alleged 
by  you,  and  to  state  the  grounds  on  which  I  rest  the  validity  of  my  election,  as  follows: 

1.  I  admit  that  returns  of  the  election  of  Delegate  to  the  Forty-seventh  Congress  of 
the  United  States,  held  on  the  2d  day  of  November,  1881,  in  the  several  counties  of  the 
Territory  of  Utah,  were  made  to  the  secretary  o{  said  Territory,  of  which  copies  are 
annexed  to  vonr  notice  and  refen-ed  to  therein  as  marked  respectively  A,  B,  C,  D,  &c., 
but  I  deny  that  said  returns  showed,  or  that  the  fact  was,  that  18,568  votes  were 
legally  cast  for  vou  at  said  election,  or  that  you  were  legally  or  otherwise  elected  to 
said  office  of  Delegate  from  the  Territory  of  Utah  in  the  Forty-seventh  Congress,  or 
entitled  to  receive  the  certificate  of  election,  or  to  be  enrolled,  sworn,  or  otherwise  in 


606  DIGEST  OF  ELECTION  CASES. 

any  manner  recognized  as  such  Delegate.  I  deny  that  said  returns  showed,  or  that 
the  fact  was,  that  I  received  less  than  one-thirteenth  of  the  votes  legally  cast  at  said 
election,  or  that  I  was  not  entitled  to  hold  the  said  office  of  Delegate  from  the  Terri- 
tory of  Utah  in  the  Forty-seventh  Congress,  or  to  be  enrolled  and  sworn  as  such  Del- 
egate, or  to  receive  the  certificate  of  election  to  said  office. 

I  deny  that  the  action  of  the  governor  of  the  Territory  of  Utah  in  withholding  the 
certificate  of  election  from  you,  and  in  giving  it  to  me,  was  illegal  or  fraudulent. 

And  I  allege  as  grounds  of  the  foregoing  denial  and  of  my  claim  that  my  election 
■was  valid,  as  follows : 

1.  No  statute,  Federal  or  Territorial,  required  or  authorized  said  returns  of  said 
election  to  be  placed  before  the  governor  of  said  Territory,  or  that  authorized  or  re- 
quired him  to  open  or  inspect  said  returns  as  the  whole  or  any  part  of  the  evidence  on 
■which  he  was  required  to  determine  the  result  of  said  election,  and  this  state  of  the 
law  has  been  judicially  declared  in  said  Territory. 

2.  Said  returns  do  not  disclose  the  names,  sex,  or  qualifications  of  the  voters  whose 
votes  are  therein  aggregatively  stated. 

3.  A  large  number  of  the  voters  who  voted  for  you  were  females,  and  therefore  not 
qualified  to  vote  for  members  of  the  legislative  assembly  in  said  Territory,  and  conse- 
quently not  qualified  to  vote  for  Delegate  to  Congress  at  said  election.  The  number 
of  such  illegal  votes  can  only  be  estimated,  but  such  votes  were  given  in  all  the  coun- 
ties in  relatively  large  numbers  and  are  an  undistinguishable  part  of  the  votes  men- 
tioned in  each  of  said  returns. 

4.  You  were  not  at  the  date  of  said  election  eligible  or  qualified,  nor  capable  of 
being  made  eligible  or  qualified,  to  be  elected  to  or  serve  in  said  office  of  Delegate, 
because  you  were  bom  a  subject  of  Great  Britain  and  have  never  been  naturalized  as 
a  citizen  of  the  United  States ;  you  are  not  a  man  of  good  moral  character ;  you  are 
not  attached  to  the  principles  of  the  Constitution  of  the  United  States,  nor  well  dis- 
posed to  the  good  order  and  happiness  of  the  same ;  you  have  been  for  many  years  a 
polygamist,  liA'ing  and  cohabiting  with  four  women  as  wives,  to  whom  you  have 
joined  yourself  by  a  pretended  ceremony  of  marriage;  you  do  not  loyally  yield  assent 
and  obedience  to  the  act  of  Congress  against  polygamy  in  the  Territories ;  you  have 
for  imany  years  last  past  publicly  endeavored  to  incite  others  to  violate  that  statute 
in  the  Territory  of  Utah;  therefore  all  the  votes  given  for  you  at  said  election  are 
void. 

5.  At  the  time  of  said  election,  on  the  second  day  of  November,  1880,  you  -were  known 
throughout  the  Territory  of  Utah  to  be  an  alien  and  not  eligible  to  said  office  of  Del- 
egate. All  the  persons  voting  for  you  were  aware  and  had  full  notice  that  you  were 
an  alien,  unnaturalized,  and  disqualified  to  hold  any  office  under  the  laws  of  the  United 
States,  or  of  any  of  the  Territories  thereof. 

6.  I  am  a  native-born  citizen  of  the  United  States,  and  qualified  by  age  and  resi- 
dence in  said  Territory  to  be  elected  at  said  election  to  said  office  of  Delegate  to  the 
House  of  Kepresentatives  of  the  Forty-seventh  Congress  of  the  United  States,  and 
besides  eight  scattering  votes  cast  at  said  election,  I  received  all  the  legal  votes  given 
at  said  election  for  said  office  of  Delegate  in  the  Forty -seventh  Congress  from  the  Ter- 
ritory of  Utah ;  that  on  the  8th  day  of  January,  1881,  the  governor  of  said  Territory,  in 
pursuance  of  the  statiite  in  such  case  made  and  provided,  and  in  the  due  and  regular 
exercise  of  the  power  in  him  vested,  did  declare  and  certify,  under  his  hand  and  the 
great  seal  of  said  Territory,  that  I  was  the  person  having  the  greatest  number  of 
votes,  and  therefore  duly  elected  as  Delegate  from  said  Territory  to  said  Congress. 

Respectfully,  yours, 

A.  G.  CAMPBELL. 

The  issue  was  thus  formed  on  three  distinct  grounds :  There  was  an 
allegation  by  the  contestant  that  he  was  elected  by  reason  of  his  having 
received  the  largest  number  of  legally-cast  votes,  as  shown  by  his  ex- 
hibits attached  to  his  notice.  To  this  Mr.  Campbell,  the  contestee, 
answered,  denying  the  notice  of  contest  on  the  first  ground,  namely, 
that  of  having  received  the  highest  number  of  votes.  His  denial  was 
qualified.  Affirmatively  he  alleged  that  ^Ir.  Cannon  was  not  a  citizen 
of  the  United  States,  but  was  an  unnaturalized  alien ;  and,  in  the  next 
place,  that  he  was  a  polygamist,  living  in  open  violation  of  the  laws  of 
the  United  States,  and  that  for  these  reasons  he  was  disqualified.  Thus 
three  questions  were  presented  to  this  committee  for  decision  : 

First.  Did  Mr.  Cannon  receive  the  highest  number  of  legally-cast 
votes  for  the  office  of  Delegate  in  Congress  ? 

Second.  Was  he  a  citizen  of  the  United  States  at  that  time,  or  has  he 


CANNON    VS.    CAMPBELL.  607 

since  become  a  citizen,  and  did  he  possess  the  other  necessary  qualifi- 
cations to  be  a  Delegate  in  Congress  f 

Third.  Was  he  a  polygamist  at  the  time  of  his  election ;  and,  if  so, 
is  that  a  disqualification  ? 

At  the  threshold  of  this  case  we  were  met  with  a  certificate  held  by 
Mr.  Campbell,  the  coutestee,  from  the  governor  of  Utah  Territory.  We 
decline  to  enter  into  a  discussion  of  the  prima  facie  right  of  Mr.  Camp- 
bell to  take  his  seat  as  a  Delegate  on  this  certificate,  because  we  con- 
strue the  action  of  the  House  in  passing  on  it  as  a  decision  adverse  to 
Mr.  Campbell,  and,  being  compelled  to  report  on  the  whole  case,  we 
deem  it  a  piece  of  supererogation  to  reopen  the  case  of  the  prima  facie 
right,  being  satisfied  with  the  action  of  the  House  thereon.  We  dis- 
miss that  part  of  the  case  from  further  consideration. 

The  next  question  that  meets,  us  is  a  question  of  practice  raised  by 
the  contestee  ;  which  is,  that  there  is  no  competent  evidence  before  the 
committee  relative  to  the  number  of  votes  cast  for  Mr.  Cannon  at  the 
last  election,  and  it  is  therefore  contended  that,  on  the  certificate  is- 
sued by  the  governor  to  Mr.  Campbell,  he  is  entitled  pro  confesso  to  the 
seat  on  the  final  hearing. 

The  facts  before  us  are  as  follows :  A  certified  transcript  made  by  the 
Secretary  of  the  Territory,  under  the  seal  thereof,  was  filed  by  Mr.  Can- 
non with  the  Clerk  of  the  House  of  Eepresentatives  on  the day  of  No- 
vember, 1880,  and  was  duly  referred  to  this  committee  under  a  resolu- 
tion of  the  House  adopted  on  the day  of  December,  1881.    It  did 

not  reach  the  committee  at  the  same  time  that  the  other  papers  in  the 
contest  came  into  its  possession ;  but  shortly  thereafter  it  was  sent  by 
the  Clerk  of  the  House  to  this  committee.  These  certificates  purport 
on  their  face  to  be  certified  transcripts  of  the  returns  madeby  the  counliy 
canvassing  boards  to  the  secretary  of  the  Territorv,  under  the  laws  of 
Utah. 

We  therefore  hold  that  certificates  of  election  made  by  county 
canvassing  boards  to  the  secretary  of  the  Territory  (under  the  Ter- 
ritorial law  relative  to  the  election  of  other  Territorial  officers  of 
the  Territory — see  sections  22,  23,  and  38,  et  seq.)  constitute  the  proper 
mode  to  be  pursued  iu  the  Territories  in  respect  to  the  election  of 
Delegates ;  and  that  that  mode  gives  effect  to  the  law,  which  makes 
it  the  duty  of  the  governor  to  canvass  the  votes,  and  to  give  a  certificate 
to  the  person  receiving  the  highest  number  of  votes  for  Delegate  in  Con- 
gress. It  has  been  the  jiractice  of  this  committee  to  receive  all  records 
duly  authenticated  by  a  seal,  without  having  them  first  introduced  be- 
fore the  magistrate  who  takes  and  certifies  the  depositions.  We  know 
of  no  other  practice  that  has  obtained  since  the  foundation  of  the  gov- 
ernment. This  class  of  evidence  has  never  been  held  to  fall  within  the 
meaning  of  the  law  passed  by  Congress  relative  to  contested-election 
cases.  The  testimony  there  referred  to  is  the  testimony  of  witnesses,  or 
the  introduction  of  such  documents  as  need  identification  or  further 
proof  before  their  competency  is  admitted ;  and  we  hold  that  it  does 
not  apply  to  records  and  evideiiice  which  a  seal  may  make  perfect  with, 
out  further  identification.  If  the  contestee  has  been  or  is  surprised  at 
the  introduction  of  this  testimony,  his  proper  course  is  to  make  appli- 
cation for  a  continuance,  so  that  he  may  be  allowed  to  take  further  tes- 
timony. Not  having  made  such  application,  we  presume  that  he  does 
not  wish  to  avail  himself  of  that  course  in  this  case.  McCrary  seems  to 
hold  the  better  practice  to  be  otherwise  (section  362),  but  section  353  so 
modifies  the  doctrine  first  laid  down  that  it  is  not  in  conflict  with  the 
view  the  committee  take. 


€08  DIGEST    OF    ELECTION    CASES. 

We  therefore  fiud  that  the  evidence  establishes  that  Mr.  Caunou  re- 
ceived 18,568  votes  ;  that  Mr.  Campbell  received  1,357  votes;  and  that 
there  were  scattering  8  votes.  Mr.  Cannon,  therefore,  received  a  ma- 
jority of  all  the  votes  cast  at  the  November  election  of  1880,  and  is  duly 
elected  a  Delegate  from  the  Territory  of  Utah,  unless  he  is  disqualified 
from  holding  a  seat  for  one  or  more  of  the  reasons  alleged  in  the  answer 
of  the  contestee. 

CITIZENSHIP. 

We  next  examine  the  question  as  to  citizenship.  The  following  are 
the  statutory  provisions  relative  to  the  naturalization  of  aliens  : 

Any  alien,  being  a  free  white  person,  may  be  admitted  to  become  a  citizen  of  the 
United  States,  or  any  of  them,  on  the  following  conditions,  and  not  otherwise: 

First.  That  he  shall  have  declared,  on  oath  or  afiSrmation,  before  the  supreme, 
superior,  district,  or  circuit  court  of  some  one  of  the  States,  or  of  the  Territorial  dis- 
tricts of  the  United  States,  or  a  circuit  or  district  court  of  the  United  States,  three 
years  at  least  before  his  admission,  that  it  was,  b<y>m  fide,  his  intention  to  become  a 
citizen  of  the  United  States,  and  to  renounce  forever  all  allegiance  and  fidelity  to  any 
foreign  prince,  potentate,  state,  or  sovereignty  whatever,  and  particularly,  by  name, 
the  prince,  potentate,  state  or  sovereignty  whereof  such  alien  may,  at  the  time,  be  a 
citizen  or  subject. 

Secondly.  That  he  shall,  at  the  time  of  his  application  to  be  admitted,  declare  on 
oath  or  affirmation,  before  some  one  of  the  courts  aforesaid,  that  he  will  support  the 
Constitution  of  the  United  States,  and  that  he  doth  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  every  foreign  prince,  potentate,  state,  or  sov- 
ereignty whatever,  and  particularly,  by  name,  the  prince,  i>otentate,  state,  or  sover- 
eignty whereof  he  was  before  a  citizen  or  subject ;  which  proceedings  shall  be  re- 
corded by  the  clerk  of  the  court. 

Thirdly.  That  the  court,  admitting  such  alien,  shall  he  satisfied  that  he  has  resided 
within  the  United  States  five  years  at  least,  and  within  the  State  or  Territory,  where 
such  court  is  at  the  time  held,  one  year  at  least ;  and  it  shall  further  appear  to  their 
satisfaction,  that  during  that  time  he  has  behaved  as  a  man  of  good  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same  ;  provided  that  the  oath  of  the  applicant 
shall,  in  no  case,  be  allowed  to  prove  his  residence.     (2  Stat.,  153.) 

Any  alien,  being  a  free  white  person  and  a  minor,  under  the  age  of  twenty-one  years, 
who  shall  have  resided  in  the  United  States  three  yeai'S  next  preceding  his  arriving 
af  the  age  of  twenty-one  years,  and  who  shall  have  continued  to  reside  therein  to  the 
time  he  may  make  application  to  be  admitted  a  citizen  thereof,  may,  after  he  arrive  s 
at  the  age  of  twenty-one  years,  and  after  he  shall  have  resided  five  years  within  the 
United  States,  including  the  three  years  of  his  minority,  be  admitted  a  citizen  of  the 
United  States,  without  having  made  the  declaration  required  in  the  first  condition  of 
the  first  section  of  the  act  to  which  this  is  in  addition,  three  years  previous  to  his  ad- 
mission ;  provided  such  alien  shall  make  the  declaration  required  therein  at  the  time 
of  his  or  her  admission  ;  and  shall  further  declare,  on  oath,  and  prove  to  the  satisfac- 
tion of  the  court,  that  for  three  years  next  preceding,  it  has  been  the  bona  fide  inten- 
tion of  such  alien  to  become  a  citizen  of  the  United  States ;  and  shall,  in  all  other  re- 
spects, comply  with  the  laws  in  regard  to  naturalization. 

Mr.  Cannon  presented  to  the  committee,  and  it  is  also  in  evidence, 
the  following  certificate  of  naturalization : 

United  States  first  district  court  for  the  Territory  of  Utah. 

United  Statks  of  America, 

Territory  of  Utah,  Great  Salt  Lake  County,  ««; 
Be  it  remembered,  that  on  the  seventhday  of  December,  A.  D.  1854,  George  Q.  Can- 
non, a  subject  of  Queen  Victoria,  made  application  and  satisfied  the  court  that  he  came 
to  reside  in  the  United  States  before  he  was  eighteen  years  of  age  ;  and  thereupon  the 
said  George  Q.  Cannon  appeared  in  open  court  and  was  sworn  in  due  form  of  law,  and 
on  his  oath  did  say,  that  for  three  years  last  ijast  it  has  been  his  bona  fide  intention  to 
become  a  citizen  of  the  United  States ;  and  to  renounce  and  abjure,  forever,  all  alle- 

f  lance  and  fidelity  to  every  foreign  prince,  potentate,  state,  and  sovereignty  whatever, 
ud  thereupon,  the  court  being  satisfied  by  the  oaths  of  Joseph  Cain  and  Elias  Smith, 
two  citizens  of  the  United  States,  that  the  said  George  Q.  Cannon  for  one  year  last 


CANNON    VS.    CAMPBELL.  G09 

past  has  resided  iu  this  Territory,  and  for  four  years  previous  thereto,  he  resided  in  the 
United  States;  that  during  that  time  he  has  behaved  as  a  man  of  good  moral  char- 
acter: that  he  is  attached  to  the  principles  of  the  Constitution  of  the  United  States 
and  well  disposed  to  the  good  order  of  the  inhabitants  thereof,  a<lmitted  him  to  be  a 
citizen  of  the  same.  And  thereupon  the  said  George  Q.  Cannon  was  in  due  form  of 
law  sworn  to  support  the  Constitution  of  the  United  States,  and  absolutely  and  en- 
tirely to  renounce  and  abjure,  forever,  all  allegiance  and  tidelitv  to  every  foreign 
prince,  potentate,  state,  and  sovereignty  whatever,  and  particularly  to  Victoria,  Queen 
of  Great  Britain  and  Ireland,  whose  subject  he  heretofore  has  been. 

In  testimony  whereof  I  have  hereunto  subscribed  luy  name  and  aflSxed  the  seal  of 
said  court  this  seventh  day  of  December,  one  thousand  eight  hundred  and  fifty-four 
and  of  the  Independence  of  the  United  States  the  seventy-ninth. 

[L.  s.]  •  '    W.  I.  APPLEBY,  Cltrk. 

It  will  be  observed  that  this  certificate  is  in  due  form,  purports  to  be 
issued  out  of  a  court  of  competent  jurisdiction,  and  is  duly  signed  and 
sealed.  On  its  face  it  is  a  transcript  of  a  record  of  a  court  of  competent 
jurisdiction;  and,  if  nothing  be  shown  to  overcome  its  efficacy,  it  must 
betaken  like  all  other  records  of  judicial  proceedings  as  absolute  verity. 
It  is  attempted  to  be  overcome  by  the  contestee  in  two  ways :  First,  by 
showing  that  there  was  in  fact  no  record  of  such  proceedings  in  the 
court  out  of  which  it  purports  to  be  issued  ;  and,  secoud,  that  Mr.  Can- 
non had  not  been  a  resident  of  any  of  the  States  or  Territories  of  the 
United  States  for  five  years  next  preceding  the  date  on  which  it  shows 
him  to  have  been  naturalized.  As  to  the  first  point  (that  there  was  no 
record),  several  witnesses  were  examined  who  now  have  the  custody  of 
records  of  the  court  held  at  that  time,  and  a  summary  of  the  testimony 
may  be  given  as  follows  : 

A  book  was  presented  before  the  notary  public  who  took  the  depo 
sitions  in  this  case,  and  was  identified  as  one  of  the  records  of  the  court 
of  Utah  in  1854.  It  was  then  the  first.district  court  of  the  Territory  of 
Utah.  Subsequently  it  became  the  third  district  court.  On  the  fly-leaf 
of  this  book  were  written  the  following  words :  "Records  of  declarations 
of  intention  to  become  a  citizen  of  the  United  States.  Also,  of  citizen- 
ship in  the  supreme  and  first  judicial  courts  of  the  United  States  in  and 
for  the  Territory  of  Utah,  Great  Salt  Lake  City.  W.  I.  Appleby,  clerk. 
September  20,  1851."  On  the  outside  of  this  book  was  printed  in  a  large 
character  the  letter  A.  It  has  always  remained  in  possession  of  the 
proper  officers  of  that  court,  and  is  now  in  the  possession  of  the  supreme 
court  of  said  Territory  as  one  of  its  records.  Many  hundred  natural- 
ization papers  (including  that  of  the  contestant,  Mr.  Cannon)  were  made 
from  this  book  and  are  now  scattered  throughout  the  Territory.  It  ap- 
pears to  have  been  printed  in  double  columns,  so  that  the  outer  portion 
of  its  page  might  be  separated  from  its  inner  portion,  leaving  the  record 
on  the  inner  portion  or  stub.  The  outer  portion  was  torn  otf  and  given 
to  the  person  naturalized.  This  was  sealed  with  the  seal  of  the  court. 
There  was  thus  left  on  the  stub  an  exact  record  of  what  was  done  by 
the  court,  and  a  certificate  or  transcript  was  given  to  the  person  natur- 
alized. 

It  is  objected  that  this  was  not  signed  by  the  judge,  and  was  there- 
fore not  a  proper  record  of  the  court,  and  that  the  naturalization  papers 
thus  issued  are  void.  We  cannot  agree  to  that  proposition.  In  some  of 
the  States  of  the  Union  the  signing  of  the  record  by  a  judge  is  made 
mandatory,  in  others  it  is  made  directory  only,  and  in  others  still  it  is 
not  required  at  all.  At  common  law  no  judgment-roll  was  required  to 
besignedby  the  presidingjudge.  Hence  itis  purely  a  statutory  pro^i8ion. 
We  are  inclined  to  the  opinion  that  the  law  is  not  mandatory,  as  applied 
H.  Mis.  35 39 


610  DIGEST    OF    ELECTION    CASES. 

to  the  Territory  of  Utah,  requiring  the  judge  to  sign  the  record.  But 
however  this  may  be,  we  are  inclined  to  hold  that  this  was  a  sufficient 
naturalization  under  the  laws  of  the  United  States,  especially  where  it 
is  affirmatively  shown  by  Mr.  Cannon  that  the  proceedings  in  court 
were  regular  in  form ;  that  witnesses  were  duly  sworn  who  testified  to 
necessary  facts,  and  that  judgment  was  orally  pronounced  by  the  court 
from  the  bench.  It  is  the  judgment  of  the  court  which  makes  its  ac- 
tion efficacious,  and  not  the  accuracy  with  which  the  clerk  writes  it 
down.  (Stephen  PL,  138 ;  Whitney  vs.  Townsend,  67  N.  Y.,  40 ;  Kollina 
V3.  Henry,  78  N.  C,  342;  Van  Yleit  vs.  Philips,  5  Iowa,  558;  Childs  vs. 
McChesny,  20  Iowa,  431 ;  Jorgenson  vs.  Griffin,  14  Minn.,  464. 

Our  attention  has  been  called  to  the  decision  of  Judge  Hunter,  of  Utah 
Territory,  in  a  proceeding  involving  the  question  here  presented.  We 
have  no  disposition  to  comment  on  this  opinion.  We  deny,  however, 
that  it  goes  to  the  length  claimed  for  it  by  the  contestee.  On  this  point, 
therefore,  we  hold  that  the  certificate  is  valid  and  binding,  and  that  Mr. 
Cannon,  for  the  purpose  of  this  contest  (so  far  as  that  point  is  involved), 
is  a  naturalized  citizen. 

The  other  point  made,  that  Mr.  Cannon  had  not  been  a  resident  of 
any  State  or  Territory  of  the  United  States  for  five  years  next  preced- 
ing the  date  of  naturalization,  involves  quite  a  novel  question.  We 
hold,  however,  on  this  point,  that  the  record  cannot  be  collaterally  ques- 
tioned, and  that  therefore  it  is  incompetent  to  show  by  evidence  in  this 
proceeding  that  the  certificate  is  null.  (Pruit  vs.  Cummings,  16  Wend., 
616  ;  State  vs.  Penny,  10  Ark.,  616 ;  McCarthy  vs.  Marsh,  1  Seld.,  263  ; 
In  re  Colman,  15  Blatchf.,  406;  Spratt  vs.  Spratt,  4  Pet.,  393. 

A  statement  of  the  facts,  however,  may  not  be  out  of  ijlace : 

It  appears  that  Mr.  Cannon  came  to  the  United  States  from  Great 
Britain  and  settled  at  Nauvoo,  in  the  State  of  Illinois,  in  the  year  1842. 
He  left  that  town  when  the  colony  known  as  the  Mormon  colony  was 
driven  out  of  Illinois  by  the  State  authorities.  He  started  with  them 
across  the  "  desert,"  and  in  1847  arrived  at  the  place  now  known  as  Salt 
Lake  City,  in  the  Territory  of  Utah.  It  was  then  a  Territory  owned 
by  the  Government  of  Mexico,  which  was  by  treaty,  on  July  4,  1848, 
ceded  to  the  United  States.  He  staid  in  that  locality  a  short  time,  hav- 
ing bought  a  town  lot  and  engaged  himself  to  be  married  to  Miss  Hoag- 
land.  He  then  left  for  California,  where  he  staid  a  year  engaged  in  gold- 
mining.  He  then  went  to  the  Hawaiian  Islands  with  several  other  per- 
sons, as  a  missionary  for  his  church.  He  remained  there  until  Sep- 
tember or  Octobor,  1854,  when  he  returned  to  Salt  Lake  City  and  mar- 
ried Miss  Hoagland,  and  he  has  ever  since  resided  in  that  Territory, 
On  these  facts  the  contestee  stoutly  claims  that  the  court  had  no  author- 
ity to  issue  the  naturalization  paper  held  by  Mr.  Cannon.  But,  as  w© 
have  already  said,  it  is  unnecessary  to  go  into  an  analysis  of  those  facts, 
as  we  hold  that  the  records  of  the  court  cannot  be  attacked  collaterally.. 
It  requires  a  direct  proceeding  to  set  aside  the  record  which  Mr.  Can- 
non now  has.  We  therefore  hold  that  Mr.  Cannon  is  a  naturalized  cit- 
izen of  the  United  States,  and  that  he  is  not  disqualified,  on  the  ground 
of  alienage,  from  holding  his  seat  as  Delegate. 

POLYGAMY. 

The  next  inquiry  which  presents  itself  is  that  of  polygamy.  On  the 
oral  argument  of  this  case  before  the  committee  the  following  admission 
(as  it  appears  in  the  printed  Eecord  at  page  60)  was  referred  to,  and 
was,  as  the  committee  then  understood,  and  now  understands,  admitted 


CANNON    VS.    CAMPBELL.  611 

to  have  been  made  by  Mr.  Cannon  in  this  contest  as  an  admission  of 
fact  for  the  purpose  of  saving  the  time  and  expense  of  taking  further 
proof  on  that  point.  It  was  at  least  not  denied  by  Mr.  Cannon  or  his 
counsel,  and  this  was  affirmed  by  the  coutestee  in  the  oral  argument. 
The  admission  is  as  follows : 

In  the  matter  of  George  Q,  Cannon.  Contest  of  Allen  G.  Campbell's  right  to  a  seat 
in  the  House  of  Representatives  of  the  Forty-seventh  Congress  of  the  United  States 
as  Delegate  from  the  Territory  of  Utah. 

I,  George  Q.  Cannon,  contestant,  protesting  that  the  matter  in  this  paper  contained 
is  not  relevant  to  the  issue,  do  admit  that  I  am  a  memberof  the  Church  of  Jesus  Christ 
of  Latter-day  Saints,  commonly  called  Mormons  ;  that,  in  accordance  with  the  t«nets 
of  said  church,  I  have  taken  plural  wives,  who  now  live  with  me,  and  have  so  lived 
with  me  for  a  number  of  years  and  borne  me  children.  I  also  admit  that  in  my  publio 
addresses  as  a  teacher  of  my  religion  in  Utah  Territory  I  have  defended  said  tenet  of 
said  church  as  being  in  my  belief  a  revelation  from  God. 

GEORGE  Q.  CANNON. 

We  are  now  brought  face  to  face  with  the  question  whether  this 
House  will  admit  to  a  seat  a  Delegate  who  practices  and  teaches  the 
doctrine  of  a  plurality  of  wives,  in  open  violation  of  the  statute  of  the 
United  States  and  contrary  to  the  judgment  of  the  civilized  world. 
There  are  several  clauses  in  our  Constitution  which  may  have  some  bear- 
ing on  this  subject. 

Section  2,  Article  I,  of  the  Constitution  is  as  follows : 

The  House  of  Representatives  shall  be  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States,  &c. 

Section  5. 

Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members ;  and  a  majority  of  each  shall  constitute  a  quorum  to  do  business.  "  *  * 

Clause  2. 

Each  House  may  determine  the  rules  of  its  proceedings,  punish  its  members  for  dis- 
orderly behavior,  and,  with  a  concurrence  of  two- thirds,  expel  a  member. 

Aeticle  I,  Section  1. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof,  or  abridging  the  freedom  of  speech  or  of  the  press. 

Article  IV,  Section  3,  Clause  2. 

The  Congress  shall  have  power  to  dispose  of  and  make  aU  needful  rules  and  regula- 
tions respecting  the  territory  or  other  property  belonging  to  the  United  States. 

These  are  the  provisions  of  the  Constitution  which  may  be  held  to 
have  some  bearing  on  the  question  of  the  qualifications  of  Delegates. 

In  the  first  place,  is  a  Delegate  from  a  Territory  a  member  of  the 
House  of  Eepresentati  ves  within  the  meaning  of  the  Constitution  ?  The 
second  section  of  the  1st  article  says :  "  The  House  of  Representatives 
shall  be  composed  of  members  chosen  every  second  year  by  the  people 
of  the  several  States  ;  and  the  electors  in  each  Stat^  shall  have  the  quali- 
fications requisite  for  electors  in  the  most  numerous  branch  in  the  State 
legislature."  There  is  no  provision  in  the  Constitution  for  the  election 
of  Delegates  to  the  House  of  Eepreseutatives  or  to  the  Senate.  They  are 
entirely  the  creature  of  statute.  They  are  clearly  not  within  the 
clause  of  the  Constitution  last  above  quoted,  for  the  House  is  "composed 
of  members  chosen  every  second  year  by  the  people  of  the  several  States ;^^ 
and  nothing  is  said  of  the  Territories.    Delegates  have  never  been  re- 


Gi2  DIGE:ST    OF    ELECTION    CASES. 

garded  as  members  iu  any  coustitutioual  sense,  because  tlieir  powers, 
duties,  and  privileges  on  the  floor  of  the  House,  when  admitted,  are  lim- 
ited. They  may  speak  lor  their  Territories  ;  they  may  advocate  such 
measures  as  they  think  proper ;  they  may  introduce  bills  and  serve  on 
committees ;  but  they  are  deprived  of  the  right  to  vote.  And  we  doubt 
whether  Congress  could  clothe  them  with  the  right  to  vote  on  measures 
affecting  the  people  of  the  States  or  of  the  Territories,  because  they  do 
not  represent  any  integral  part  of  the  nation,  but  simply  an  unorganized 
territory  belonging  to  the  whole  people.  Hence  Delegates  are  creatures 
of  statute,  and  it  would  be  competent  at  any  time  lor  the  legislative 
branch  of  the  Government  to  abolish  the  office  altogether. 

The  writer  of  this  report  goes  further  than  that.  He  holds  that  it  is 
incompetent  for  Congress  and  the  Executive  to  impose  on  any  future 
House  the  right  of  Delegates  to  seats  with  defined  qualifications.  That  is 
to  say,  when  the  several  laws  were  passed  giving  the  Territories  the  right 
to  this  limited  representation,  those  laws  were  binding  only  on  the  lower 
House,  which  permitted  them  to  be  or  made  it  possible  for  them  to  be 
l^assed,  and  were  i)ersuasive  only  to  the  Houses  of  future  Congresses.  For 
some  purposes  each  House  of  Congress  is  a  separate,  independent  branch 
of  the  Government.  It  is  made  so  by  the  Constitution.  For  example, 
each  house  is  the  judge  of  the  elections  and  returns  of  its  own  members, 
and  neither  the  Executive  nor  the  Senate  can  interfere  with  that  consti- 
tutional prerogative.  Each  House  is  independent  iu  its  expenditure  of 
its  contingent  fund,  and  in  the  government  of  its  own  officers.  It  is  in- 
dependent iu  the  formation  of  its  own  committees,  in  clothing  them  with 
1)0  wer  to  take  evidence,  to  send  for  persons  and  papers,  and  to  investigate 
such  matters  as  are  within  its  jurisdiction.  Each  House  is  independent 
in  its  power  to  arrest  and  to  imprison,  during  the  session  of  the  body, 
such  contumacious  witnesses  as  refuse  to  abide  its  order.  In  many 
other  instances  that  may  be  cited  each  House  acts  independently  of 
the  other.  And  with  reference  to  the  election  of  Delegates,  who  (if  they 
hold  any  office  or  franchise  at  all)  can  be  nothing  but  agents  represent- 
ing the  property  and  common  territory  of  all  the  people,  it  operates 
only  on  the  lower  branch  of  Congress,  for  their  election  extends  no 
right  to  them  to  interfere  with  the  business  of  the  Senate  or  to  act  as 
members  thereof.  This  must  not  be  construed  into  an  opinion  that  the 
writer  holds  that  the  House  of  Representatives  may  disregard  any  law 
which  Congress  has  the  constitutional  power  to  pass.  Such  laws  are 
as  binding  upon  this  House  as  upon  any  citizen  or  court.  Nor  does  the 
writer  of  this  report  mean  to  be  understood  that  it  is  not  competent  for 
Conjiress  to  provide,  under  the  Coustitution,  for  legislative  representa- 
tion for  Territories,  but  it  is  denied  that  Congress  can  bind  the  House 
ijy  any  law  respecting  the  qualitication  of  a  Delegate.  It  cannot  affix  a 
qualification  by  law  for  a  Delegate  and  bind  any  House  except  the  one 
assenting  thereto.  The  qualitication  of  members  is  fixed  by  the  Consti- 
tution. Hence  they  may  not  be  added  to  or  taken  from  by  law.  But 
as  to  Delegates,  they  are  not  constitutional  officers.  Their  qualification 
depends  entirely  upon  such  a  standard  as  the  body  to  which  they  are 
attached  may  make.  It  is  urged  this  means  a  legal  qualification.  This 
is  admitted ;  but  that  legal  qualification  is  remitted  to  the  body  to  which 
the  Delegate  is  attached,  because  it  is  the  sole  judge  of  that  requisite. 
It  is  unfettered  by  constitutional  restrictions  and  cannot  yield  any  part 
of  this  prerogative  to  the  other  branch  of  Congress  or  the  Executive. 
If  it  could,  the  right  to  amend  would  follow,  and  the  House  might  find 
itself  in  the  awkward  position  of  having  the  Senate  fixing  qualifications 
to  Delegates,  or  the  Executive  vetoing  laws  fixing  them,  and  by  this 


CANNON    VS.    CAMPBELL.  613 

meaus  the  power  which  by  the  Constitution  resides  alone  in  the  House 
woukl  be  entirely  abrogated. 

It  is  claimed  this  is  an  autocratic  power.  This  is  admitted.  All  leg- 
islative bodies  are  autocratic  in  their  powers  unless  restricted  by  writ- 
ten constitutions.     In  this  instance  there  is  no  restriction. 

It  is  contended  that  the  actof  Congress  extending  the  Constitution  and 
laws  of  the  United  States  over  the  Territory  of  Utah,  in  all  cases  where 
they  are  applicable,  extends  the  constitutional  privilege  to  Delegates  and 
clothes  them  with  membership  as  constitutional  officers  of  the  House. 
We  cannot  assent  to  that  \iew.  The  very  language  of  the  act  itself  only 
extends  the  Constitution  and  laws  over  the  Territory  in  cases  where  they 
are  applicable.  They  cannot  be  applicable  to  the  election  of  a  Delegate ; 
for  if  they  were,  then  Congress  would  have  no  authority  to  deprive  a 
Delegate  of  the  right  to  vote.  To  contend  that  the  applicability  of  the 
Constitution  in  that  respect  extends  to  Delegates  proves  too  much.  It 
is  clear,  therefore,  that  that  clanse  of  the  Constitution  relative  to  the 
expulsion  of  a  member  by  a  two-thirds  vote  cannot  apply  to  Delegates, 
because  they  hold  no  constitutional  office.  It  is  equally  clear  that  the 
clause  of  the  Constitution  relative  to  elections,  returns,  and  qualifica- 
tions of  members  has  no  applicability  except  by  parity  of  reasoning ;  and 
we  do  not  dissent  from  the  view  that,  so  far  as  the  qualification  of  citi- 
zenship and  other  necessary  qualifications  (except  as  to  age)  are  con- 
cerned, they  extend  to  Delegates  as  well  as  to  members.  (Sec.  1906, 
K.  S.  U.  S.)  This  is  made  so,  probably,  by  the  statute,  expressly  so 
to  all  the  Territories  except  to  Utah  Territory,  and  inferentially  to  that 
Territory.  It  follows,  as  a  logical  sequence,  that  the  House  may  at  any 
time,  by  a  majority  vote,  exclude  from  the  limited  membership  which  it 
now  extends  to  Delegates  from  Territories  any  person  whom  it  may 
judge  to  be  unfit  for  any  reason  to  hold  a  seat  as  a  Delegate. 

It  cannot  be  said  that  polygamy  can  be  protected  under  that  clause 
of  the  Constitution  protecting  every  one  in  the  worship  of  God  accord- 
ing to  the  dictates  of  his  own  conscience,  and  prohibiting  the  passage 
of  laws  preventing  the  free  exercise  thereof. 

It  is  true  that  vagaries  may  be  indulged  by  persons  under  this  clause 
of  the  Constitution  when  they  do  not  violate  law  or  outrage  the  consid- 
erate judgment  of  the  civilized  world.  But  when  such  vagaries  trench 
upon  good  morals,  and  debauch  or  threaten  to  debauch  public  morals, 
such  practice  should  be  prohibited  by  law  like  any  other  evil  not  prac- 
ticed as  a  matter  of  pretended  conscience. 

The  views  which  we  have  just  expressed  render  it  unnecessary  for  us 
to  discuss  further  the  various  propositions  involved.  In  the  face  of  this 
admission  of  Mr.  Cannon  we  feel  compelled  to  say  that  a  representative 
from  that  Territory  should  be  free  from  the  taint  and  obloquy  of  plural 
wives.  Having  admitted  that  he  practices,  teaches  and  advises  others 
to  the  commission  ot  that  offense,  we  feel  it  our  duty  to  say  to  the  peo- 
ple of  that  Territory  that  we  will  exclude  such  persons  from  represent- 
ing them  in  this  House.  In  saying  this  we  desire  to  cast  no  imputation 
on  the  contestant  personally,  because  in  his  deportment  and  conduct  in 
all  other  respects  he  is  certainly  the  equal  of  any  other  person  on  this 
floor. 

This  leaves  one  other  question  for  decision,  namely :  Is  Mr.  Campbell 
entitled  to  the  seat,  having  received  only  a  minority  of  the  votes  cast! 
We  are  aware  that  in  England  authorities  are  found  for  the  position 
that  votes  cast  for  ineligible  persons  are  simply  void,  and  that  those 
cast  for  a  person  qualified  (e«n  though  in  the  minority)  are  effectual, 
and  that  thereby  the  candidate  against  whom  the  majority  of  voters 


014  DIGEST    OF    ELECTIOX   CASES. 

declared  may  receive  tlie  ofi&ce.  In  a  few  of  tlie  States  of  the  Union 
this  principle  applies,  but  the  great  weight  of  American  authority  is  to 
the  contrary,  and  we  do  not  hesitate  to  say  that  the  better  doctrine  is 
that  a  minority  of  legal  votes  does  not  elect.  We  therefore  say  that 
Mr.  Campbell,  not  having  received  the  majority  of  the  votes  cast,  is  not 
entitled  to  the  seat. 

Resolved,  That  Allen  G.  Campbell  is  not  entitled  to  a  seat  in  this  Con- 
gress as  a  Delegate  from  the  Territory  of  Utah. 

Resolved,,  That  George  Q.  Cannon  is  not  entitled  to  a  seat  in  this  Con- 
gress as  a  Delegate  from  the  Territory  of  Utah. 

Resolved,  That  the  seat  of  Delegate  from  the  Territory'  of  Utah  be, 
and  the  same  hereby  is,  declared  vacant. 


VIEWS  OF  ME.  W.  G.  THOMPSOJf. 
In  the  matter  of  contest  in  case  of  Cannon  vs.  Campbell,  Utah  Territory. 

The  undersigned,  as  a  member  of  the  Committee  on  Privileges  and 
Elections,  to  whom  was  referred  the  matter  of  contest  in  the  above-en- 
titled cause,  not  being  able  to  agree  fully  with  the  majority  of  said  com- 
mittee who  report  herein,  begs  leave  to  briefly  state  the  reasons  for  such 
disagreement,  and  while  I  cheerfully  concur  in  the  final  conclusion  of 
the  majority  of  the  committee,  and  shall  vote  with  them  in  sustaining 
the  resolution  that  Mr.  Cannon  is  not  entitled  to  a  seat  as  a  Delegate,  I 
do  so  not  merely  because  it  is  clearly  proven  by  the  evidence,  as  well 
as  by  his  admissions  in  writing,  that  he  practices,  teaches  and  advises 
other  deluded  men  and  women  that  plurality  of  wives,  in  the  face  of  the 
laws  of  Congress  prohibiting  it,  is  right,  because  an  alleged  revelation, 
through  Brigham  Young,  so  declared  it,  and  that  such  pretended  reve- 
lation was  to  be  observed  before  the  laws  of  the  land,  thereby  affording 
a  pretext  for  the  commission  of  a  felony,  and  under  the  guise  of  religion 
demand  immunity  from  i^unishment,  and  with  brazen  effrontery  defy 
the  laws  of  the  land,  which  all  others  are  bound  to  obey,  and  for  a 
breach  of  which  the  penalties  ijrovided  are  speedily  enforced  against 
them. 

The  days  of  inspiration  have  passed,  and  murder  or  other  crimes  can- 
not be  justified  because  a  claim  that  some  new  revelation  has  been 
communicated  to  them  by  virtue  of  which  the  laws  of  the  country  can 
be  defied.  And  while  it  is  a  matter  of  but  little  moment  to  the  country 
at  large  what  the  peculiar  belief  of  Mr.  Cannon  may  be,  still  it  does  be- 
come a  matter  of  grave  importance  when  he  presents  himself  as  the 
representative  of  a  great  crime,  not  only  a  moral  crime  but  a  legal 
crime,  denounced  as  such  by  the  civilized  world,  and  so  declared  by  the 
highest  tribunals  of  justice  in  the  land,  and  boldly  demands  that  he 
shall  be  recognized  as  such,  and  we  cannot  comply  with  such  demand 
without  making  that  crime  our  own ;  but  I  am  constrained  to  deny  Mr. 
Cannon  a  seat  as  a  Delegate  for  the  further  reason  that  he  has  failed  to 
make  a  contest  for  it. 

True  it  is  that  on  the  20th  day  of  January,  1881,  he  served  a  notice  of 
contest  on  Mr.  Campbell  in  due  form,  and  it  is  also  true  that  Mr.  Camp- 
bell, on  the  26th  day  of  February,  1881,  filed  his  answer  to  that  notice, 
putting  in  issue  every  material  allesration  set  forth  in  the  notice  of  con- 
test, and  especially  the  allegation  that  Mr.  Cannon  had  received  or  was 


CANNON    VS.    CAMPBELL.  615 

elected  by  a  majority  of  the  votes  legally  cast  at  the  election  held  ou  the 
2d  day  of  November,  1880,  and  also  charging  that  Mr.  Cannon  was  not 
at  the  time  of  the  election  a  citizen  of  the  United  States,  thus  putting 
in  issue  every  right  upon  which  Mr.  Cannon  based  his  claim  to  a  certifi- 
cate of  election  and  these  being  properly  in  issue,  it  becomes  incumbent 
upon  him  to  establish  by  proper  and  legal  testing  the  truth  of  all  his 
material  allegations.  1  now  ask,  how  did  he  do  this  ?  I  answer,  he  did 
not  do  so.  I  further  say  that  he  never  attempted  to  do  so,  and  when  I 
so  declare  I  do  not  hedge  such  declaration  with  any  mere  technicality 
or  subterfuge,  to  avoid  meeting  the  very  right  of  the  contestant,  but  so 
maintain  it  upon  the  broadest  princii)les  of  well-established  rules  of 
practice  adopted  and  enforced  by  all  the  courts  in  the  land.  But  I  am 
answered  by  the  majority  that  Mr.  Cannon  has  produced  as  evidence  a 
tabulated  or  what  purports  to  be  a  tabulated  statement  of  the  votes  cast 
at  the  election  of  November  2,  1880,  by  which  it  appears  that  Mr.  Can- 
non had  a  large  majority  of  all  the  votes  cast,  and  that  such  statement  is 
certified  to  by  the  secretary  of  the  Territory  under  his  seal  of  office,  and 
therefore  it  must  be  received  as  evidence.  It  will  be  conceded,  I  think, 
by  all  that  the  committee  can  consider  only  legal  evidence,  such  evi- 
dence as  the  laws  of  Congress  prescribe,  and  that  they  cannot  consider 
any  other.  The  question  is,  is  this  such  evidence  as  the  committee 
can  consider  for  any  purpose  whatever  ?  I  say  it  is  not,  and  cannot  be 
made  so. 

Section  108,  Revised  Statutes  of  the  United  States,  1873,  provides 
*'  that  the  party  desiring  to  take  depositions  under  the  provisions  of 
this  chapter  shall  give  notice  to  the  opposite  party  in  writing  of  the 
time  and  place ^  when  and  tch^re,  the  same  will  be  taken,  of  the  name  of 
the  ofidcer  before  whom  it  will  be  taken,  and  the  name  of  the  witness  to 
be  examined,  and  such  notice  shall  be  ijersonally  served,"  &c.  These 
are  the  plain,  unequivocal  requirements  of  the  statute,  and  the  wildest 
latitudinarian  will  not  dare  to  say  that  these  are  merely  directory  and 
may  be  disregarded  at  the  will  and  pleasure  of  a  contestant  or  a  com- 
mittee. Each  and  all  of  these  provisions  are  mandatory,  and  while  we, 
as  a  committee,  may  have  some  discretion,  some  latitude,  in  the  exami- 
nation of  facts,  so  that  even-handed  justice  may  be  done,  we  have  none 
in  the  matter  of  law ;  we  are  bound  by  that  as  we  find  it,  and  we  have 
no  right  to  go  outside  of  its  plain  requirements,  and  when  we  do  so  we 
act  in  contravention  of  law,  without  authority,  and  our  acts,  unauthorized^ 
must  be  null  and  void.  When  did  Mr.  Cannon  give  such  notice  ?  How 
and  when  did  contestee  have  notice  that  such  evidence  would  be  taken 
or  used  for  any  purpose  ? 

Every  member  of  the  committee  knows  that  contestant  does  not  even 
claim  tiiat  he  attempted  to  do  so  ;  but,  on  the  contrary,  it  does  clearly 
appear  from  the  evidence  that  Mr.  Cannon  procured  this  statement 
without  the  knowledge  of  the  contestee,  and  not  for  the  purpose  of  being 
used  as  evidence  before  the  committee,  but  only  for  the  purpose  of  being 
used  as  evidence  before  the  then  Clerk  of  this  House,  so  as  to  have  his 
name  entered  upon  the  roll  of  Delegates.  And,  strange  as  it  may  strike 
every  fair  and  candid  mind,  the  Clerk  assumed,  in  the  absence  of  Con- 
gress, to  perform  its  functions;  and  did,  upon  this  evidence  alone,  and 
in  the  absence  of  the  certificate  required  by  law,  judicially  determine 
that  :Mr.  Cannon  was  duly  elected,  and  placed  his  name  upon  the  rolls ; 
all  this  in  open  violation  of  law,  and  stands  without  a  precedent.  That 
evidence,  then,  had  expended  its  force.  It  was  not  even  among  the 
papers  referred  bv  the  House  to  the  committee,  and  never  found  its 
way  into  the  hands  of  the  committee  until  the  Gth  day  of  February, 


616  DIGEST    OF    ELECTION    CASES. 

1883,  six  weeks  after  the  comruittee  Lad  been  organized,  when  it  again 
appeared  as  eA'ideuce  on  the  part  of  the  contestant,  and  when  it  had 
been  suggested  that  no  evidence  had  been  taken  and  the  contest  was 
abandoned. 

The  contestee  had  a  right  to  the  notice  required  by  law;  he  had  a 
right  to  be  present  and  cross  examine  the  witness ;  he  had  a  right  to 
show  that  this  statement  was  not  the  best  evidence,  and  demand  that 
investigation  be  made  into  the  legality  of  every  ballot  cast,  as  well  as 
the  qualifications  of  each  elector,  and  especially  so  when  we  find  in  evi- 
dence this  strange  law  upon  the  statute  books  of  Utah,  then  and  now  in 
force  (act  of  February  12, 1870,  section  43,  chapter  2):  "That  every  woman 
of  the  age  of  twenty-one  years  who  has  resided  in  the  Territory  six 
months  next  preceding  any  general  election,  born  or  naturalized  in  the 
United  States,  or  icho  is  a  loife  or  daughter  of  a  native-born  or  natural- 
ized citizen  of  the  United  States,  shall  be  entitled  to  vote  at  any  election 
in  this  Territory." 

The  same  law  provides  that  all  voters  in  the  Territory  shall  be  required 
to  be  registered  prior  to  the  election,  and  the  registration  list  is  in  the 
hands  of  the  election  officers,  and  each  voter  has  his  or  her  name  marked 
"voted"  on  such  list;  and  that  list  is  based  on  the  affidavit  of  each 
voter,  and  shows  both  the  qualification  and  the  sex  of  the  voter.  This 
statement  is  not  evidence  of  the  legality  of  a  single  vote.  It  is  not  evi- 
dence of  the  qualification  of  any  elector  in  the  Territory,  and  these  facts 
can  only  be  ascertained  by  the  examination  of  the  register-lists,  the  bal- 
lots, and  the  electors.  The  contestee  has  been  denied  these  rights,  each 
and  every  one  of  them.  He  had  a  right  to  rest  upon  his  statutory  rights 
and  make  no  move  until  he  was  notified  that  evidence  would  be  taken. 
He  held  the  certificate  of  election  then ;  he  holds  it  now.  That  certifi- 
cate contains  all  the  statute  requires;  it  is  under  the  hand  of  the  only 
officer  authorized  to  give  it,  and  has  attached  thereto  the  broad  seal  of 
the  TeiTitory.  It  stands  to-day  uncontested ;  and  no  excused  is  given 
why  it  is  uncontested  ;  and  the  answer  of  contestee  gives  denial  to  all 
this,  and  declares  that  no  statute.  Federal  or  Territorial,  required  or 
authorized  the  governor  of  the  Territory  to  open  or  inspect  these  returns 
as  the  whole  or  any  part  of  the  evidence  on  which  he  was  required  to 
determine  the  result  of  said  election ;  and  this  state  of  the  law  has  been 
judicially  declared  in  the  Territory ;  and  while  the  committee  may  not  be 
held  to  take  notice  of  court  decisions,  they  are  bound  to  know  the  law 
as  it  exists,  and  to  follow  the  interpretation  given  by  the  courts  having 
proper  jurisdiction  of  the  subject-matter  when  attention  is  called  to 
them. 

I  am  brought  to  the  conclusion  that  contestant,  after  he  had  com- 
menced this  contest,  by  the  aid  of  a  clerk,  acting  without  law  or  au- 
thority, and  in  flagrant  violation  of  both,  got  his  name  upon  the  rolls, 
considering  himself  safe,  and  had,  as  he  supposed,  pi  aced  the  laboring 
oars  in  the  hands  of  Campbell,  and  made  him  contestant,  abandoned 
the  contest,  and  never  attempted  to  take  a  word  of  evidence  to  show 
him  entitled  to  a  seat,  aad  stands  in  that  attitude  now,  and  ought  to 
remain  there.  And  it  behooves  us  to  scan  carefully  the  allegation  of 
Mr.  Cannon  that  he  received  a  majority  of  the  legal  votes  cast,  and 
more  especially  so  when  we  are  confronted  with  Territorial  statute  already 
quoted,  by  which  the  bold  attempt  is  mafle  to  enlarge  the  naturalization 
laws  and  confer  citizenship  upon  persons  by  other  means  and  methods 
than  those  prescribed  by  Congress,  whose  province  alone  it  is  to  make 
such  laws ;  and  such  attempt  is  a  most  unwarranted  assumption  of 
power ;  and  when  men  or  women,  by  virtue  of  such  a  law,  exercise  the 


CANNON   VS.    CAMPBELL.  617 

right  of  suffrage,  and  foist  upon  the  law-abicliiig  people  a  representa- 
tive hostile  to  the  laws  of  Congress,  and  inimical  to  the  well-being  of 
our  Government,  and  at  open  war  with  civilization  itself,  can  we,  dare  we, 
say  to  the  one  holding  the  proper  credentials,  and  who  met  the  contest 
In  the  manner  pointed  out  by  law,  and  invited  open,  full,  and  fair  inves- 
tigation, that  he  by  any  trick  or  device  shall  be  denied  the  right  of  show- 
ing in  evidence  these  wrongs? 

But  admit  (which  I  do  not)  that  the  tabulated  statement  ha»  been 
properly  admitted  in  evidence,  and  that  the  legal  presumption  is  that 
the  facts  stated  are  correct,  such  presumption  is  met  and  overcome  by 
the  certificate  of  election  held  by  contestee,  still  leaving  the  burden  of 
proof  on  the  contestant  to  show  by  proper  evidence  that  such  certifi- 
cate was  fraudulently  obtained,  and  confers  no  right  upon  the  holder. 
This  contestant  had  not  attempted,  but,  relying  upon  the  fact  that  his 
name  appears  on  the  roll  as  a  Delegate,  rested  his  case;  and  when  it  is 
admitted,  as  all  must  admit,  that  it  obtained  that  place  wrongfully  and 
without  even  the  color  of  law,  the  certificate  stands  unimpeached,  and 
entitles  Mr.  Cam-phell  prima  facie  to  a  seat ;  and  I  know  of  no  statute, 
law,  or  any  revelation,  ancient  or  modern,  which  gives  the  contestant 
in  this  case  superior  rights  to  any  other  contestant  for  a  seat,  or  that 
would  place  him  above  the  law  and  its  plain  requirements. 

Again,  it  is  alleged  that  contestant  was  not  at  the  time  of  his  alleged 
election  a  citizen  of  the  United  States,  and  in  proof  that  he  was,  and  to 
meet  the  evidence  on  this  point  introduced  by  contestee,  he  presents 
what  purports  to  be  a  certificate  of  naturalization  issued  December  7, 
1854,  by  the  clerk  of  the  court  having  competent  jurisdiction  to  grant 
such  naturalization,  but  fails  to  produce  any  record  that  such  applica- 
tion was  made  in  court,  and,  indeed,  it  is  not  claimed  that  any  such 
record  was  ever  made  or  entered  in  the  records  of  the  court,  but  only 
an  entry  of  the  clerk  in  his  own  book  that  such  certificate  was  issued, 
not  that  any  such  proceedings  were  had  in  court.  1  am  answered  on 
this  jjoint  that  the  witnesses  produced  at  the  time  have  again  been  ex- 
amined, and  swear  that  the  proceedings  were  in  the  court  and  before 
the  judge.  While  this  is  true,  it  is  also  true,  as  will  be  seen  by  the  ev- 
idence, that  one  of  the  witnesses  swore  that  the  proceedings  were  before 
a  judge  who  in  fact  was  never  in  the  Territory  until  years  after  the 
date  of  the  certificate.  The  witness  afterwards  endeavored  to  correct 
this,  when  his  attention  was  called  to  the  blunder,  and  shows  only  how- 
unreliable  evidence  of  a  record  is  when  carried  for  twenty-seven  years  in 
a  human  head,  instead  of  being  in  the  place  the  law  directs. 

I  admit  the  rule  of  law  allowing  secondary  evidence  when  the  original 
is  lost  or  destroyed,  but  I  do  deny  that  any  rule  of  law  was  so  broadened 
as  to  allow  an  original  record  to  be  made  twenty-seven  years  after  it 
should  have  been  entered,  or  to  be  made  at  all  by  an  unauthorized  per- 
son. In  this  case  there  is  no  pretense  that  such  a  record  was  ever  made 
or  entered  in  the  court  proceedings  of  that  day,  although  it  is  proven 
that  said  court  was  in  session  at  the  time  and  the  record  of  its  pro- 
ceedings for  all  that  term  properly  entered,  but  the  naturalization  of 
contestant  forms  no  part  of  it. 

Again,  the  law  allows  the  naturalization  of  a  person  coming  to  this 
country  who  was  under  eighteen  years  of  age  at  the  time  of  his  arrival, 
but  when  he  applies  for  naturalization  he  must  show  by  proper  evi- 
dence that  he  had  been  a  resident  of  the  United  States  for  three  years 
next  preceding  his  application.  I  take  it  that  this  law  does  not  con- 
template a  constructive  residence,  but  an  actual  residence. 

The  evidence  clearly  shows,  nor  is  it  denied  by  contestant,  that  he, 


618  DIGEST    OF    ELECTION    CASES. 

with  other  Mormons,  when  driven  from  Nauvoo,  in  Illinois,  shook  the  dust 
of  American  soil  from  off  their  feet,  and  in  the  year  1847  sought  refuge 
in  a  foreign  Government  and  settled  under  the  protection  of  the  Mexi- 
can flag  and  Mexican  laws,  and  for  a  time  became  subjects  of  that 
Government ;  but  the  fortunes  of  war  soon  afterwards  gave  that  terri- 
tory to  the  United  States,  and  by  treatj^,  ratified  in  1848,  was  ceded  to 
the  United  States  by  Mexico.  Contestant  in  1849  left  this  country  and 
became  a  resident  of  the  Sandwich  Islands,  and  so  remained  a  resident 
until  1854,  when  he,  as  the  evidence  shows,  returned  to  Salt  Lake  City, 
in  the  Territory  of  Ultah,  on  the  28th  day  of  November,  1854,  and  on  the 
7th  day  of  December,  1854,  ten  days  after  his  arrival,  was  naturalized, 
as  his  certificate  purports,  not  by  a  proceeding  in  court,  but  by  a  pro- 
ceeding before  a  clerk ;  and  when  these  acts,  so  persistently  done  and 
continued  from  time  to  time,  indicating  a  determination  to  cut  loose 
from  all  allegiance  to  this  Government,  gives  emphasis  to  the  evidence 
adduced  tending  to  show  that  his  pretended  certificate  of  naturalization 
was  and  is  fraudulent  and  void ;  and  that  not  having  resided  in  the 
United  States  three  years  next  preceding  his  application  to  become  a 
citizen,  the  court  was  without  jurisdiction,  and  even  if  he  had  appeared 
in  open  court,  and  in  all  respects  complied  with  the  requirements  of  the 
statute,  his  naturalization  under  such  circumstances  would  have  been 
illegal  and  void.  • 

My  conclusions  are  that  G.  Q.  Cannon  is  not  entitled  to  a  seat  in 
Congress  as  a  Delegate  from  the  Territory  of  Utah,  but  that  Allen  G. 
Campbell  is  entitled  to  such  seat,  and  report  for  adoption  the  following 
resolutions : 

Resolved,  That  G.  Q.  Cannon  is  not  entitled  to  a  seat  in  the  Forty- 
seventh  Congress  of  the  United  States  as  a  Delegate  from  the  Territory 
of  Utah. 

Resolved,  That  Allen  G.  Campbell  is  entitled  to  a  seat  in  the  Forty- 
seventh  Congress  of  the  United  States  as  a  Delegate  from  the  Territory 
of  Utah. 

WM.  G.  THOMPSON. 


VIEWS  OF  MR.  PETTIBONE. 

This  case  is  emphatically  sui  generis.  It  stands  alone  among  con- 
tested election  cases.  Giving  to  it  the  best  thought  of  which  I  have 
been  capable,  I  give  my  conclusions  as  briefly  as  possible. 

Presuming  that  for  George  Q.  Cannon  and  Allen  G.  Campbell,  as  in- 
dividuals, the  committee  have  no  fear,  favor,  prejudice,  or  aft'ection,  it  is 
apparent  that  the  case  hinges  on  a  few  questions  which  may  be  tersely 
stated : 

TJie  prima  facie  case. 

I.  As  to  whether  the  certificate  of  Mr.  Campbell  entitles  him  prima 
facie  to  a  seat.  Despite  all  that  has  been  or  may  be  said,  it  appears  to 
me  that  this  certificate  standing  alone,  and  j  ast  as  it  reads,  is  plainly 
sufficient ;  and  that  the  words  '*  being  a  citizen  of  the  United  States 
over  the  age  of  twenty-one  years,"  which  are  regarded  as  vitiating  it, 
might  and  should  be  regarded  as  mere  surplusage,  if  we  were  alone 
considering  the  prima  facie  case,  and  without  regard  to  the  very  right 
involved  in  the  contest. 

II.  But  the  certificate  does  not  stand  alone.    We  cannot  shut  our 


CANNON    VS.    CAMPBELL.  619 

eyes  to  the  fact  that  long  before  this  certificate  was  issued,  under  date 
of  the  Sth  day  of  January,  1881,  the  contestee,  Mr.  Campbell,  filed  a 
protest,  under  date  of  December  12,  1880,  with  the  governor,  Eli  H. 
Murray,  protesting  against  his  counting  any  votes  for  the  contestant, 
George  Q.  Cannon  ;  and  that  the  governor,  in  rendering  his  decision 
upon  this  protest,  unequivocally  states  that  "  the  returns  showed  that 
at  the  election  George  Q.  Cannon  received  18,568  votes  and  Allen  G. 
Campbell  received  1,357  votes."  This  we  find  on  the  first  page  of  the 
testimony  and  papers  in  the  case. 

And  we  also  know  from  the  governor's  words  that  he  gave  the  certi- 
ficate to  Mr.  Campbell,  because,  quoting  his  exact  language,  "  it  having 
been  shown  that  Mr.  Cannon  is  not  a  citizen,  and  that  he  is  incapable 
of  becoming  a  citizen,  I  cannot  under  the  law  certify  that  he  is  duly 
elected,  and  that  Mr.  Campbell  having  received  the  greatest  number  of 
votes  cast  for  any  citizen  was  therefore  duly  elected  and  must  receive 
the  certificate  accordingly."     (Record,  page  18.) 

If  the  English  doctrine  as  it  has  been  applied  and  enforced  in  the 
British  Parliament  prevailed  in  the  American  Congress,  viz,  "  that 
where  the  majority  candidate  is  ineligible,  and  sufiicient  notice  of  his 
ineligibility  has  been  given,  the  person  receiving  the  next  highest  num- 
ber of  votes,  being  eligible,  must  be  declared  elected,  the  governor's  po- 
sition would  be  unassailable,  i^rovided  it  is  true  that  Mr.  Cannon  never 
was  naturalized  and  sufficient  notice  of  the  fact  had  been  given. 

But  the  English  rule  does  not  j)revail  in  America.  In  the  case  of 
Smith  vs.  Brown,  2  Bartlett,  395,  in  the  report  submitted  by  Mr.  Dawes, 
then  chairman  of  the  Committee  on  Elections,  it  is  declared — 

That  the  law  of  the  British  Parliament  in  this  particular  has  never  been  adopted 
in  this  country,  and  is  wholly  inapplicable  to  the  system  of  government  under  which 
we  live. 

And  Judge  McCrary,  in  his  work  on  contested  elections,  in  words  as 
perspicuous  as  they  are  terse,  sums  up  the  matter  thus : 

It  is  a  fundamental  idea  with  us  that  the  majority  shall  rule,  and  that  a  majority  or 
at  least  a  plurality  shall  be  required  to  eleet  a  person  to  office  by  popular  vote. 

An  election  with  us  is  the  deliberate  choice  of  a  majority  or  plurality  of  the  electors. 
Any  doctrine  which  opens  the  way  for  minority  rule  in  any  case  is  anti-republican  and 
anti- American.     (McCrary,  $  234.) 

Authorities  might  be  multiplied,  but  they  are  unnecesary  and  super- 
fluous. 

But  it  is  contended  that  there  is  no  testimony  before  the  committee 
showing  that  Mr.  Cannon  received  a  majority  of  the  votes  cast  at  the 
election. 

I  agree  that  the  governor's  statement  outside  his  certificate  to  Mr. 
Campbell  would  not  alone  show  that  Mr.  Cannon  received  a  vast  majority 
of  the  votes  cast.  I  quite  agree  with  the  affirmation  that  a  good  judg- 
ment is  not  rendered  invalid  because  the  judge  may  offer  unsound  rea- 
sons for  having  rendered  it. 

But  this  leads  to  the  question  whether  or  not  there  is  testimony  given 
in  evidence  by  Mr.  Cannon  in  support  of  his  claim  to  have  received  the 
great  majority  of  the  votes  cast  at  the  election.  I  mean  legal  votes,  of 
course. 

And  right  here  it  is  well  to  consider  the  law  by  which  the  returns  of 
which  Governor  Murray  speaks  came  to  his  hands. 

By  §  22  of  the  compiled  laws  of  Utah  it  is  provided — 

At  the  close  of  the  election  the  judge  shall  seal  up  the  ballot-bux  and  the  list  of  the 
names  of  the  electors  and  transmit  the  same  without  delay  to  the  county  clerk. 


620  DIGEST    OF    ELECTION    CASES. 

And  §  22  provides — 

Immediately  upon  receiving  the  electoral  returns  of  any  precinct  the  couuty  clerk 
and  probate  judge,  or,  in  his  absence,  one  of  the  selectmen,  shall  unseal  the  list  and 
ballot-box,  and  count  and  compare  the  rotes  with  the  names  on  the  list,  and  make  a 
hrief  abstract  of  the  offices  and  names  voted  for  and  the  nun^ber  of  votes  each  person 
received ;  the  ballot-box  shall  then  be  returned  and  the  votes  and  list  preserved  for 
reference  in  case  the  election  of  any  person  shall  be  contested. 

Section  24  enacts — 

When  all  the  returns  and  abstracts  are  made,  the  clerk  shall  forthwith  make  a  gen- 
eral abstract  and  post  it  up  in  his  office,  and  forward  to  the  secretarj-  of  the  Territory 
a  certified  copy  of  the  names  of  the  persons  voted  for,  and  the  number  of  votes  each  has 
received  for  Territorial  offices,  and  furnish  each  person  having  the  highest  number  of 
votes  for  county  and  precinct  offices  a  certificate  of  his  election. 

And  by  section  25  it  is  enacted — 

So  soon  as  all  the  returns  are  received  the  secretary,  in  the  presence  of  th«  governor, 
shall  unseal  and  examine  them,  and  furnish  to  each  person  having  the  highest  number 
of  votes  for  any  Teiii,torial  office  a  certificate  of  his  election. 

Under  the  provisions  of  these  above-quoted  sections  the  election  for 
Delegate  was  held  in  Utah,  yet  held  on  a  day  distinct  and  set  apart  from 
anj'  other  election  than  that  of  a  Delegate,  that  is,  on  November  2, 
1880. 

An  analysis  shows  that  the  votes  and  list,  sealed  up,  are  in  each  county 
conveyed  to  the  office  of  the  county  clerk,  and  by  him  and  the  probate 
judge,  or  a  selectman,  counted  and  compared,  and  a  brief  abstract  is 
made  of  the  result.  When  all  the  returns  and  abstracts  from  the  various 
polls  are  made,  a  general  abstract  of  the  entire  vote  of  the  couuty  is 
forthwith  made  and  posted  uj)  in  the  clerk's  office,  and  a  certified  copy 
is  sent  to  the  secretary  of  the  Territory.  When  he  has  thus  received 
these  returns  in  abstract  from  each  county  they  are  opened  and  examined 
in  the  presence  of  the  governor.  The  various  lists  of  A^oters  and  votes 
of  the  different  precincts  are  deposited  with  the  county  clerks  of  the  re- 
spective counties,  but  the  consolidated  abstract  of  the  vote  of  each 
county  is,  and  this  alone,  forwarded  to  the  secretary. 

Kow,  it  was  these  abstracts  of  the  votes  of  each  county  called  "  re- 
turns" which  were  opened  and  examined  in  the  governor's  presence. 
It  is  not  pretended  he  ever  saw  any  other.  These  abstracts,  made  in 
strict  conformity  to  statutory  law,  were  the  "  returns  "  on  which  Gov- 
ernor Murray  gave  to  Mr.  Campbell  his  certificate,  as  we  find  it  at  the 
bottom  of  page  19  of  the  record  evidence. 

It  is  the  certified  "  summa^'y"  of  these  returns  whi(;h  constitute  what 
is  called  Mr.  Cannon's  credentials  on  page  20  of  the  record. 

And  it  conclusively  appears  from  the  notice  of  contest  that  Mr.  Can- 
non professed  to  furnish  with  his  notice  copies  of  every  one  of  these 
"  returns,"  marked,  respectively.  A,  B,  C,  D,  &c.,  down  to  Exhibit  V. 
And  Mr.  Campbell  solemnly  admits,  in  his  answer  to  the  notice  of  con- 
test, that  he  received  them.     His  language  is : 

I  admit  that  returns  of  the  election  of  Delegate  to  the  Forty-seventh  Congress  held 
on  the  2d  day  of  November,  1880,  in  the  several  counties  of  the  Territory  of  Utah,  were 
made  to  the  secretary  of  said  Territory,  of  which  copies  are  annexed  to  your  notice  and 
referred  to  therein  as  marked  respectively  A,  B,  C,  D,  «fcc. 

Mr.  Campbell  solemnly  admitted  that  he  received  a  copy  of  each 
county  return  at  the  very  beginning  of  the  contest.  He  admits  these 
copies  are  just  what  is  printed  in  the  testimony,  viz,  Exhibits  A,  B,  0, 
D,  &c.,  to  Mr.  Cannon's  notice  of  contest. 

That  record  evidence  is  admissible  he  does  not  deny,  but  insists  that 
these  admitted  copies  of  the  county  returns  cannot  be  looked  to,  because 


CANNON   VS.    CAMPBELL.  621 

they  were  too  speedily  thrust  into  his  hands.  And  we  are  cited  to  sec- 
tion 362  of  Judge  McCrary's  Law  of  Elections.  McCrary  employs  this 
language : 

The  (luestion  may  be  raised  whether  evidence  of  this  character  can  he  offered  for  the 
first  time  on  trial. 

And  in  answer  to  this  question  he  adds : 

It  may  be  said  that  it  should  be  produced  before  an  officer  taking  testimony,  in  the 
presence  of  the  opposite  party,  and  pat  in  evidence  within  the  time  required  for  com- 
pleting the  taking  of  testimony  in  the  case. 

And,  he  adds,  this  is  undoubtedly  the  correct  practice. 

But  icliy  is  it  the  correct  practice  ;  what  is  the  reasou  ?  Judge  Mc- 
Crarj-  answers  this  :  "  For  if  evidence  of  this  character  is  to  be  used  it 
is  but  fair  that  the  party  against  whom  it  was  offered  should  have  notice 
of  it  in  time  to  offer  evidence  in  response  to  it.'''' 

And  here  is  the  meat  of  the  whole  matter.  For  even  if  this  dictum 
of  Judge  McCrary  were  statute  law,  as  it  is  not,  yet  since  the  object  of 
the  rule,  if  it  be  a  rule  of  law,  is  that  the  opposite  party  may  have  notice^ 
the  case  seems  to  furnish  the  strongest  possible  example  of  the  rule  that 
*■'■  the  reason  of  the  law  utterly  failing  the  law  itself  fails."  And  Judge 
McCrary,  on  this  very  topic,  in  section  353,  says :  "  The  House  of  Eepre- 
sentatives  has  shown  a  disposition  to  give  a  liberal  construction  to  the 
acts  of  Congress  in  relation  to  the  mode  of  conducting  contested  elec- 
tions. They  are  constructed  with  reference  more  to  the  substantial 
rights  of  the  parties  than  to  the  exact  wording  of  the  statute."  It  is  evi- 
dent that  contestee  relies  on  the  exact  icording  of  the  statute  alone  when 
lie  urges  that  contestant  has  no  evidence  before  us. 

It  is  not  pretended  that  these  copies  are  false  copies.  It  is  not  pre- 
tended that  the  contestee  did  not  expect  them  to  be  before  us,  for  they 
were  attached  to  and  made  exhibits  to  the  notice  of  contest  which  was 
duly  served  upon  him  and  which  he  knew  we  would  have  here.  He 
cannot  deny  that  he  had  notice  of  these  exhibits,  for  he  refers  to  them, 
admits  their  reception,  but  denies  their  effect  to  be  as  claimed  by  con- 
testant in  the  answer  which  he,  the  contestee,  prepared,  signed,  and 
filed. 

1  conclude,  therefore,  that  there  is  testimony  before  the  committee  that 
Mr.  Cannon  received  a  majority  of  the  votes  cast  at  the  election,  and 
none  that  he  did  not.  Whether  Mr.  Cannon  is  eligible  or  not,  I  must 
decide  against  the  claim  of  Mr.  Campbell,  both  on  his  prima  facie  case 
and  on  the  merits  of  his  claim  to  a  seat  as  the  dulv  elected  Delegate  from 
Utah. 

Ill,  This  brings  us  to  the  question  of  Mr.  Cannon's  eligibility. 

And,  first,  is  he  a  naturalized  citizen  ? 

It  is  needless  to  sum  up  here  the  authorities  bearing  on  this  question. 
Suffice  it  to  say  that  going  over  all  the  cases  cited  on  either  side,  and 
hunting  the  books  which  treat  of  the  subject  of  naturalization,  I  am  con- 
strained to  say  that  Mr.  Cannon's  claim  to  have  been  naturalized  seems 
to  me  res  adjudicata. 

Whether  a  Mormon,  in  view  of  what  it  is  notorious  his  church  teaches 
and  claims  and  practices,  can  be  "attached  to  the  i^riuciples  of  the  Con- 
stitution of  the  United  States,  and  well  disposed  to  the  good  order  of  its 
inhabitants  "  or  not — however  this  may  be,  cannot  affect  Mr.  Cannon's 
citizenship  to-day  and  now,  when  once  it  is  conceded  that  he  was  nat- 
uralized, as  his  certificate  shows,  in  1854. 

And  now  the  question  remains,  since  it  is  evident  that  at  the  election 
Mr.  Cannon  received  a  vast  majority  of  the  votes  cast,  and,  though  claim- 


622  DIGEST    OF    ELECTION    CASES. 

ing  that  thousands  of  illegal  votes  were  thrown  for  hira,  the  contestee 
still  does  not  claim  that  throwing  them  out  would  leave  a  majority  for 
the  contestee,  why  is  Mr.  Cannon  not  entitled  to  his  seat;  or,  in  other 
words,  why  should  he  not  be  welcomed  to  his  seat  as  the  Territorial 
Delegate  from  Utah  as  he  has  been  heretofore?  For  it  must  be  con- 
ceded that  he  has  the  qualifications  which  Article  II  of  the  Constitu- 
tion prescribes  as  the  only  ones  which  are  necessary  in  the  case  of  a 
Representative  in  Congress  ;  that  is,  age,  citizenship,  and  inhabitancy. 
He  is  over  25  years  of  age ;  he  is  a  naturalized  citizen,  and  he  has  for  a 
score  of  years  and  more  been  an  inhabitant  of  Utah.  Judge  Story,  in 
his  concise  but  luminous  comment  on  this  article  of  the  Constitution, 
says : 

It  would  seem  but  fair  reasoning,  upon  the  plainest  principles  of  interpretation,  that 
■when  the  Constitution  established  certain  qualifications  as  necessary  for  office,  it 
meant  to  exclude  all  others  as  prerequisites.  From  the  Tery  nature  of  such  a  provis- 
ion the  affirmation  of  these  qualifications  {i.e.,  proper  age,  citizenship,  and  inhabitancy) 
loould  seem  to  imply  a  negative  to  all  others.     (Story  on  the  Constitution,  section  624.) 

And  this  is  but  applying  to  this  clause  of  the  Constitution  the  maxim 
of  interpretation  expressio  unius  est  exclusio  alterius.  The  express  men- 
tion of  one  thing  implies  the  exclusion  of  another. 

If,  then,  a  Delegate  from  a  Territory  stands  on  the  same  footing  as  a 
member  of  Congress,  Mr.  Cannon  must  be  admitted  to  his  seat.  But 
the  Delegate  does  not.     He  is  in  no  just  sense  a  member  of  the  House. 

"  The  House  of  Representatives  shall  be  composed  of  members  chosen 
every  second  year  by  the  people  of  the  several  StatesJ^  (United  States 
Constitution.) 

He  is,  in  the  language  of  section  13  of  the  organic  act  of  Utah  Terri- 
tory, "a  Delegate  to  the  House  of  Representatives  of  the  United  States.'^ 

We  have  only  to  consider  the  history  and  unbroken  practice  of  legis- 
lation for  the  Territories  since  the  formation  of  the  Government  to  see 
the  Utah  case  in  its  true  light. 

Commenting  on  the  provision  of  the  Constitution,  that  "  Congress 
shall  have  power  to  dispose  of  and  make  all  useful  rules  and  regulations 
respecting  the  Territory  or  other  property  of  the  United  States,"  Judge 
Marshall,  in  the  American  Insurance  Company  vs.  Conter,  1  Peters, 
511,  declares :  "  In  legislation  for  the  Territories  Congress  exercises  the 
combined  powers  of  the  general  and  of  a  State  government." 

And  Judge  Cooley,  in  his  "Principles  of  Constitutional  Law,"  uses 
these  words: 

The  people  of  the  Territory,  except  as  Congress  shall  provide  therefor,  are  not  of  right 
entitled  to  participate  in  political  authority  until  the  Territory  becomes  a  State. 

Is  it,  then,  insisted  that  their  Delegate — who  has  a  seat  and  a  right  to 
debate  only,  but  is  debarred  from  any  exercise  of  law-making  power, 
who,  in  the  case  of  Utah,  need  be  but  twenty-one  years  of  age,  while  a 
member  must  be  twenty-five — can  of  right  demand  that  he  shall  stand  on 
the  same  constitutional  footing  as  a  Member,  and  that  Congress  may 
not  inquire  as  to  his  fitness  to  be  a  Delegate,  except  to  ascertain  if  he 
has  received  a  majority  of  the  votes  cast,  is  twenty-one  years  of  age,  is 
naturalized,  and  an  inhabitant  of  Utah  ?  This,  I  understand,  is  the  con- 
testant's position  and  claim. 

Why  cannot  Congress  inquire  as  to  a  member's  qualifications  further 
than  to  ascertain  if  he  be  past  twenty-five  years  of  age,  a  citizen  of  the 
United  States  for  seven  years,  and  an  inhabitant  of  the  State  from 
whence  he  comes?  Because  the  Constitution  lays  these  down  as  the 
sole  positive  qualifications,  and  the  expression  of  the  one  thing  is  tbe 
exclusion  of  the  other.    But  no  such  restriction  is  laid  on  the  power  of 


CANNON    VS.    CAMPBELL.  62;5 

Congress  over  the  Delegate.  The  Constitution  never  contemphited  the 
presence  on  the  floor  of  the  House,  as  an  integral  part  of  the  House,  of  a 
Dele^.ate  from  a  Territory.  For  one,  I  do  not  believe  that  the  clause  of 
the  Constitution,  "each  House  shall  he  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members,''^  has  anything  to  do  with 
a  contested  election  of  a  Delegate  from  a  Territory,  except  so  far  as 
analogies  of  practice  go.  But  these  analogies  do  not,  and  cannot,  have 
the  force  of  law.  They  cannot  confer  on  the  Delegate  the  pri\alege8  or 
the  immunities  which  the  Eepresentative  has  conferred  on  him  by  the 
Constitution.  In  judging  whether  Mr.  George  Q.  Cannon  is  entitled  to 
a  seat  we  are  not  judging  of  the  election  or  qualification  of  a  member, 
for  he  is  not  a  member-elect. 

It  may  seem  trivial  to  discuss  this,  but  it  seems  to  me  the  vital  point 
in  the  case. 

The  Delegate  from  a  Territory  is  here  ex  gratia,  by  the  grace  and  favor 
of  Congress  to  the  people  of  the  Territory,  that  they  may  have  an  agent 
at  the  seat  of  sovereign  power  to  look  after  and  advocate  their  interests^ 
but  as  a  mere  advocate,  not  as  a  member  of  the  court. 

The  Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  Territory  or  other  property  of  the  United  States. 

And  the  Delegate  from  a  Territory  is  not  in  any  sense  a  member  of  Con- 
gress, he  is  not  a  Representative  in  Congress,  he  is  a  creation  of  Con- 
gress. 

^ow,  as  we  all  well  know.  Congress,  by  the  act  of  July  1, 1862,  carried 
into  the  Revised  Statutes  in  §  5352,  solemnly  enacted  that — 

Every  person  having  a  husband  or  wife  living  who  marries  another,  whether  mar- 
ried or  single,  in  a  Territory  or  other  place  over  which  the  United  States  has  exclu- 
sive jurisdiction,  is  guilty  of  hiqamy,  and  shaU  he  punished  by  a  fine  of  not  more  than 
§500  and  imprisoned  for  a  term  not  more  than  five  years.  « 

While  it  cannot  be  truthfully  said  that  this  law  is  in  force  in  Utah  it 
is  in  force  in  every  other  Territory,  and  has  never  been  repealed. 
Contestant  George  Q.  Cannon  says : 

I  do  admit  that  (in  accordance  with  the  tenets  of  his  church)  I  have  taken  plural 
wives,  who  hoh*  live  with  me  and  have  so  lived  with  me  for  a  number  of  years  and 
borne  me  children.     (Record,  page  6U.) 

And  this  undoubted,  solemnly  self  admitted  bigamist,  this  despiser 
and  contemner  of  the  laws  of  Congress,  to-day  and  now  demands  a  seat  on 
the  floor  of  the  House  of  Representatives,  and  demands  to  be  paid  $5,000 
per  year  for  occupying  such  seat,  by  the  Government  whose  laws  he 
tramples  under  foot  and  teaches  others  to  do  the  same,  as  he  frankly 
admits.  For  one,  I  cannot  support  the  Constitution,  and  yet  supinely 
sanction  the  utter  defiance  and  abrogation  of  a  law  of  Congress  declared 
to  be  constitutional.     (Reynolds  vs.  United  States,  8  Otto,  145.) 

Every  legislative  body  must,  in  the  nature  of  things,  have  the  power 
to  preserve  its  own  order,  decorum,  and  dignity. 

This  demand  on  the  part  of  Mr.  Cannon,  one  who  makes  no  dissimu- 
lation, but  who  admits  in  the  face  of  the  world  that  he  lives  in  open 
violation  of  the  laws  of  Congress,  to  a  seat  on  the  floor  of  the  House  is 
an  insult  to  the  dignity  of  the  House.  He  is  unworthy  of  a  seat.  By 
my  vote  he  shall  never  be  welcomed  to  a  seat  in  the  House. 

This  case  should  be  sent  back  to  the  people  of  Utah  with  a  stern  ad- 
monition that  no  person  shall  ever  be  seatetl  as  a  Delegate  in  this  House 
who  violates  the  law  and  offends  as  George  Q.  Cannon  has  offended,  and 
still  does  offend,  by  his  own  solemn  confession. 

One  more  observation  and  I  am  done. 


624  DIGEST    OF   ELECTION    CASES. 

It  is  with  us  a  fundamental  idea  that  tbe  majority  shall  rule.  This 
idea  everywhere  prevails  in  practice,  unless  it  is  in  rare  instances  curbed 
by  constitutional  inhibition. 

In  section  5  of  Article  I  of  the  Constitution,  in  clause  2,  it  is  declared 
that  "each  House  may  determine  the  rules  of  itsproceediiigs  (and)  pun- 
ish its  members  for  disorderly  conduct."  So  far  there  is  no  doubt  or 
question  that  the  majority  principle  is  applicable  as  applied  to  this 
clause.  It  ever  has  been  and  still  is  so  construed.  But  the  concluding 
words  are,  "  and,  with  the  concurrence  of  two-thirds,  expel  a  member.'" 

Here  is  a  strong  restraint  laid  on  the  majority  i)rinciple.  It  was  im- 
ported into  the  text  of  the  Constitution,  we  know,  on  the  motion  of  Mr. 
Madison.  But  an  excepting  clause  in  any  legal  instrument  is  strictly 
confined  to  the  excepted  matter,  and  this  is  but  another  way  of  saying 
the  express  affirmation  of  one  thing  is  an  exclusion  of  another.  This  is 
sound  law  and  sound  sense.  The  exception  to  the  doctrine,  everywhere 
universal  among  us,  is  that  a  member  of  Congress,  a  necessary  i)art  of 
the  organic  whole,  shall  not  be  expelled  without  the  concurrence  of  two- 
thirds  of  all  the  members.  But  this  exception,  by  the  very  words  of 
the  Constitution,  applies  only  to  members — to  Eepresentatives  from  the 
States.  It  is  against  every  j)rinciple  of  sound  construction  to  apply  it 
to  the  creature  of  Congress ;  to  throw  it  over  him  as  a  protecting  segis 
to  save  him  from  just  responsibility  for  violating  the  laws  of  Congress 
when  it  was  designed  for,  and  by  its  very  words  is  confined  to,  the  case 
of  the  member  of  Congress. 

I  have  said  this  is  a  novel  case.  The  nearest  approach  to  it,  and  it  is 
vastly  weaker,  that  I  have  been  able  to  find  is  that  of  Jeremiah  Learned, 
in  the  Massachusetts  house  of  representatives  in  1875.  Because  he  had 
been  indicted  for  seditiously  and  riotously  opposing  the  collection  of 
public  J;axes,  by  resolution  his  right  to  hold  a  seat  was  suspended. 
Pending  his  trial  upon  that  indictment  the  dignity  of  that  house  would 
not  permit  his  presence,  and  yet  he  was  a  memJber-elect  and  not  a  delegate 
to  it  from  an  outside  constituency. 

My  voice  and  vote,  then,  is  for  a  resolution  denying  to  George  Q. 
Cannon  a  seat  as  a  Delegate  from  Utah,  because  it  is  in  gross  violation 
of  the  dignity  of  the  House,  and  would  be  an  insult  to  the  sovereignty  of 
the  nation  to  admit  a  self-admitted  criminal  violator  of  the  laws  of  Con- 
gress to  a  seat  in  the  body  whereof  we  are  members. 


VIEWS  OF  MR.  MILLER. 

I  submit  the  following  as  governing  and  controlling  my  action  as  a 
member  of  the  Committee  on  Elections,  relative  to  the  pending  contest 
of  Cannon  vs.  Campbell  for  the  right  to  represent  the  Territory  of  Utah 
in  the  Forty-seventh  Congress.  At  the  outstart  I  concede  that  George 
Q.  Cannon  was,  at  the  date  of  the  election  in  November,  1880,  a  natu- 
ralized citizen  of  the  United  States.  The  certificate  of  naturalization 
exhibited  by  him  is  in  due  form,  purjiorts  to  be  issued  by  a  court  of 
competent  jurisdiction,  and  is  signed  and  sealed  by  the  court  issuing  it. 
The  adjudication  of  this  question  has  never  been  opened  or  reversed  by 
any  judicial  tribunal  having  constitutional  and  legal  authority  to  open 
and  reverse  it. 

I  concede,  further,  that  it  conclusively  appears  in  evidence  that  George 
<^.  Cannon,  who  was  a  candidate  for  election  as  Delegate  to  the  Forty- 
seventh  Congress  for  the  Territory  of  Utah,  did,  at  the  November  elec- 


CANNON   VS.    CAMPBELL.  625 

tion  in  1880,  receive  a  majority  of  all  the  votes  cast  in  said  Territory 
and  that  he  was  duly  and  legally  elected  a  Delegate  and  entitled  to  a 
seat  in  said  Congress,  unless  he  is  disqualified  from  holding  a  seat  for 
some  cause  cognizable  by  Congress. 

Section  5,  Article  I  of  the  Constitution  of  the  United  States  is  as 
follows : 

Each  House  shall  be  the  judge  of  the  elections,  returns,  aud  qualifications  of  it 
own  members.     *     *     * 

The  sole  question  for  consideration,  to  my  mind,  is  presented  by  the 
inquiry : 

Is  George  Q.  Cannon  for  any  reason  disqualified  to  sit  as  a  Delegate 
in  Congress  to  represent  the  Territory  of  Utah,  and  is  that  disqualifica- 
tion of  such  a  character  as  to  justify  Congress  in  refusing  him  a  seat  in 
the  House  under  the  provisions  of  the  Constitution  ? 

The  evidence  discloses  the  fact  that  George  Q.  Cannon  is  a  poly^gamist, 
and  that  he  not  only  believes  in  but  practices  the  doctrines,  tenets,  and 
mandates  of  Mormonism.  On  page  60  of  the  evidence  in  this  case  is 
the  following  admission : 

I,  George  Q.  Cannon,  contestant,  protesting  that  the  matter  in  this  paper  contained 
is  not  relevant  to  the  issue,  do  admit  that  I  am  a  member  of  the  Church  of  Jesus  Christ 
of  Latter-day  Saints,  commonly  called  Mormons ;  that,  in  accordance  with  the  tenets 
of  said  church,  I  have  taken  pltiral  wives,  who  now  live  with  me,  and  have  so  lived 
with  me  for  a  number  of  years  and  borne  me  children.  I  also  admit  that  in  my  pub- 
lic addresses  as  a  teacher  of  my  religion  in  Utah  Territory  I  have  defended  said  tenet 
of  said  church  as  being,  in  my  belief,  a  revelation  from  God. 

GEORGE  Q.  CANNON. 

This  is  an  adjudication  of  the  charge  that  he  is  a  polygamist.  It 
was  one  of  the  reasons  alleged  by  Mr.  Campbell,  the  contestee,  which  in 
his  opinion  rendered  Mr.  Cannon  ineligible  to  the  office  of  Delegate  in 
the  House  of  Representatives.  It  was  a  proper  subject-matter  of  proof, 
and  Mr.  Cannon  waived  the  proof  by  his  admission,  which  was  as  broad 
as  the  charge. 

As  long  ago  as  July  1,  1862  (section  5352  of  the  Eevised  Statutes), 
Congress  enacted  that : 

Every  person  having  a  husband  or  wife  living  who  marries  another,  whether  mar- 
ried or  single,  in  a  Territory  or  other  place  over  which  the  United  States  has  exclu- 
sive jurisdiction,  is  guilty  of  bigamy,  and  shall  be  punished  by  a  fine  of  not  more  than 
$500  and  imprisoned  for  a  term  not  more  than  five  years. 

Under  his  own  hand,  and  without  any  objection  or  reservation,  Mr. 
Cannon  admits  that  he  is  living  in  open  violation  of  this  statute,  and 
that  he  openly  defies  this  edict  of  the  two  Houses  of  Congress,  approved 
by  the  President,  and  declared  constitutional  and  valid  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  Reynolds  vs.  United  States,  8 
Otto,  145. 

In  addition  to  this  statute,  and  the  decision  of  the  court  as  to  its  con- 
stitutionality, that  polygamy  is  a  crime,  we  have  the  judgment  of  some 
of  the  wisest  and  ablest  statesmen  and  jurists  of  this  country  that  its 
teachings  aud  practices  are  fatal  to  republican  government  and  to  the 
constitutional,  civil,  and  religious  liberties  that  the  Government  of  the 
United  States  was  designed  to  protect.  In  a  recent  debate  in  the  United 
States  Senate  on  the  authority  and  i)ower  of  Congress  to  enact  a  law — 

That  no  polygamist,  bigamist,  or  any  person  cohabiting  with  more  than  one  woman, 
and  no  woman  cohabiting  with  any  of  the  persons  described  as  aforesaid  in  this  sec- 
tion, in  any  Territory  or  other  place  over  which  the  United  States  have  exclusive  juris- 
diction, shall  be  entitled  to  vote  at  any  election  held  in  any  such  Territory  or  other 
place,  or  be  eligible  for  election  or  appointment  to,  or  be  entitled  to  hold  any  office  or 

H.  Mis.  35 40 


626  DIGEST    OF    ELECTION    CASES. 

place  of  pnblic  tmst,  honor,  or  emolument  in,  under,  or  for  any  such  Territory  or  place, 
or  under  the  United  States — 

Senator  Garland,  of  Arkansas,  said : 

Both  these  Senators  (Mr.  Call  and  Mr.  Vest)  have  said  that  the  provisions  of  sec- 
tion 7  and  section  8  are  severe  provisions.  They  -were  intended  to  be  severe.  They 
have  been  said  to  be  rough  provisions.  They  were  intended  to  be  rough.  Desperate 
cases  need  desperate  remedies,  and  I  am  of  the  opinion  that  every  provision  in  this 
bill  is  as  well  sanctioned  by  the  organic  law  and  precedents  under  the  organic  law  of 
this  country  as  any  bill  that  has  ever  received  the  sanction  of  Congress. 

The  proposition  rejiorted  rests  on  the  basis  that  the  Territory  of  Utah  needs  some  new 
law ;  the  Territory  of  Utah  is  not  properly  governed  according  to  the  opinions  of 
many  persons ;  and  I  have  in  my  hand  reports  on  that  subject  running  back  for  fif- 
teen years  submitted  in  the  two  Houses  of  Congress,  and  without  a  dissenting  voiceit 
is  the  general  judgment  that  there  is  something  wrong  in  that  Territory ;  tbat  there  is 
something  there  that  defies  the  laws  of  this  country ;  that  there  is  something  there 
that  sets  at  naught  mandates  and  edicts  (if  I  may  use  that  expression)  of  the  two 
Houses  of  Congress,  approved  and  sanctioned  by  the  President  of  the  United  States. 

On  the  same  subject.  Senator  Bayard,  of  Delaware,  said : 

In  this  case  I  do  not  propose  to  add  anything  further  to  what  has  been  said,  and 
well  said,  by  my  friend  from  Arkansas  [Mr.  Garland],  because  I  had  in  some  degree 
indicated  the  same  line  of  opinion.  I  had  stated,  and  I  here  reiterate,  that  there  is 
nothing  of  the  reality  of  a  republican  form  of  government  in  the  Territory  of  Utah. 
It  is  a  maleficent  and  malevolent  union  of  church  and  state ;  it  is  a  theocratic  gov- 
ernment higher  than  the  Constitution  of  the  United  States  in  the  estimation  of  its 
votaries,  and  which  compels  an  obedience  that  is  hostile  to  the  spirit  of  liberty  and 
spirit  of  law  and  the  American  laws  and  constitutions  themselves. 

Now,  the  question  is,  in  a  republican  Congress,  under  a  Constitution  expressly 
guaranteeing  to  the  States  a  republican  form  of  government,  and  which  is  intended 
in  all  its  departments  to  be  in  the  form  and  to  breathe  the  spirit  of  a  republican  gov- 
ernment, can  you  say  that  it  is  not  a  needful  rule  and  regulation  by  Congress  to  enact 
such  laws  as  shall  bring  to  an  end  a  doctrine  so  fatal  to  republican  government  and 
to  the  constitutional,  civil,  and  religious  liberties  that  that  government  was  designed 
to  protect  ? 

On  the  same  subject  Senator  Edmunds,  of  Vermont,  said : 

The  government  of  the  Territory  of  Utah  in  every  one  of  its  practical,  administra- 
tive, and  political  aspects  is  a  government  of  polygamists — not  a  government  of  faith 
or  opinion,  but  a  government  of  fact.  The  men  who  practice  that  thing  are  in  jios- 
session  of  that  government ;  they  are  in  possession  of  it  in  defiance  of  the  statutes  of 
the  United  States  punishing  that  thing ;  they  are  in  possession  of  it  in  defiance  of  all 
civilized.  Christian,  modern  understanding  of  what  it  is  right  to  do,  not  what  it  is 
right  to  think. 

No  man.  North  or  South,  who  believes  in  the  Christian  religion,  who  believes  in  a 
republican  government,  can  maintain  or  has  maintained  in  this  body  that  this  institu- 
tion of  polygamy  is  one  that  can  exist  consistently  with  our  universal  idea  of  the  true 
theory  of  a  republican  government.    Nobody  has  pretended  such  a  thing. 

The  Committee  on  the  Judiciary  recognize  to  the  fullest  extent  all  that  has  been 
said  touching  the  right  of  every  man  and  every  woman  to  believe  precisely  what  he 
or  she  likes.  He  may  be  an  infidel  and  believe  in  nothing ;  he  may  be  of  any  sect ; 
he  may  believe  that  a  hundred  wives  or  no  wives  are  right ;  he  may  believe  in  horse- 
stealing or  whatever  he  likes.  So  long  as  he  believes  merely  he  has  a  right  to  his 
opinion ;  but  when  it  comes  to  what  he  has  to  do  in  the  government  of  the  country  it 
is  a  different  thing. 

More  than  that  and  beyond  that,  it  is  not  the  mere  practice  of  polygamy,  bad  as 
it  is,  but  that  happens  to  be  an  inherent  and  controlling  force  in  the  most  intense  and 
anti-republican  hierarchy,  theocracy,  as  an  organized  and  systematic  government 
that,  so  far  as  my  small  reading  has  gone,  has  ever  existed  on  the  face  of  the  earth. 
The  Church  of  Latter-day  Saints,  a  corporation  organized  under  the  authority  of  law, 
controls  in  every  respect  every  step  in  the  Territorial  operations  of  that  community. 
The  three  presidents  by  step  after  step,  the  three  first  presidents,  as  they  are  called, 
but  I  believe  that  the  last  one  of  those  is  the  absolute  ruler  in  point  of  fact — you  may 
disguise  it  and  gloss  it  as  you  please — of  the  destiny  and  the  fate  of  that  peojie,  polyg- 
amnsts,  Mormons  who  are  not  polygamists,  and  Gentiles.    Is  that  republican  ?    Can 


CANNON   VS.    CAMPBELL.  627 

yoii  tolerate  in  the  heart  of  this  continent  of  republics  the  building  up  of  a  State  of 
that  character? 

From  the  views  of  sucli  able  jurists  and  statesmen  we  may  safely  con- 
clude that  the  opinions  and  practices  admittedly  held,  believed  in,  prac- 
ticed, and  taugrht  by  Mr.  Cannon  are  totally  at  variance  with  and  hostile 
to  the  spirit  of  liberty,  the  letter  of  the  laws,  and  the  spirit  and  letter  of 
the  Constitution  of  the  United  States,  and  that  such  belief,  such  teach- 
ings, and  such  practices  disqualify  him  to  set  as  a  Delegate  in  the  House 
of  Eepresentatives. 

Is  it,  then,  such  a  disqualification  as  comes  within  the  provisions  of 
section  5,  Article  I  of  the  Constitution  ? 

Webster  defines  "quality"  to  make  fit,  suitable,  or  competent  for  any- 
thing; and  "qualification-'  that  which  qualifies  or  fits  any  person  or 
thing  for  any  use  or  purpose,  as  an  office,  an  employment;  capability, 
fitness,  accomplishment. 

Mr.  Cannon  lives  in  open  defiance  to  the  statutes  of  the  United  States; 
in  defiance  of  all  civilized,  Christian,  modern  understanding  of  what  is 
right  to  practice ;  he  preaches,  teaches,  and  practices  tenets  and  upholds 
and  obeys  the  edicts  of  an  institution  that  sets  the  laws  of  the  Govern- 
ment at  defiance,  that  is  fatal  to  republican  institutions  and  so  baneful 
in  its  teachings  that  unless  overthrown  will  sap  the  very  foundations  of 
the  citadel  of  our  liberties.  Is  such  a  man  a  "fit"  man  to  be  admitted 
to  the  House  of  Eepresentatives?  Is  he  a  "suitable"  man  to  admit  to 
a  seat  in  Congress?  Does  he  possess  those  requisites  which  qualify  him 
to  hold  an  office  in  the  legislative  branch  of  the  Government  ? 

But  it  is  contended  that  the  only  inquiry  Congress  can  make  as  to 
the  "qualifications"  of  any  one  seeking  admission  as  a  Delegate  or 
Member  to  Congress  is  confined  to  those  mentioned  in  section  2  of  arti- 
cle I  of  the  Constitution,  viz,  age,  citizenship,  and  residence  in  the  State 
in  which  he  shall  be  chosen;  and  that  inasmuch  as  the  Constitution  is 
silent  on  all  other  qualifications  the  inquiry  is  necessarily  limited  to  these 
alone.  In  support  of  this  theory  its  advocates  cite  the  opinion  of  Judge 
Story  and  other  eminent  jurists,  and  a  long  line  of  precedents,  chiefly 
valuable  on  account  of  their  age  and  uniformity.  These  decisions  and 
precedents,  however,  are  not  binding  on  Congress ;  they  are  only  per- 
suasive. 

The  power  of  Congress  to  decide  for  itself  in  all  matters  within  its 
scope  and  authority  is  as  absolute  and  unlimited  as  that  of  the  Supreme 
Court  of  the  United  States  in  its  proper  sphere,  and  it  has  the  same 
constitutional  right  and  prerogative  to  reverse  the  decisions  of  former 
Congresses  and  to  decide  in  the  face  of  precedents  and  opinions,  no 
matter  how  ancient  or  judicial  the  source,  as  has  the  Supreme  Court  to 
reverse  former  decisions  and  ignore  the  opinions  and  decisions  of  other 
courts.  And  whenever  a  wrong  is  to  be  righted ;  whenever  injustice  is 
to  be  uprooted ;  whenever  barbarism,  or  anarchy,  or  treason  is  to  be 
halted  in  its  attack  on  the  citadel  of  our  liberties ;  whenever  an  insti- 
tution or  government — political  or  religious — within  the  geographical 
limits  of  this  Government,  be  it  State  or  Territorial,  defies  the  laws  of 
the  land,  sets  at  naught  the  mandates  and  edicts  of  the  two  Houses  of 
Congress ;  sets  up  a  theocratic  government  higher  than  the  Constitution 
of  the  United  States  in  the  estimation  of  its  votaries,  and  compels  an  obe- 
dience that  is  hostile  to  the  spirit  of  liberty  and  the  spirit  and  letter  of 
our  laws ;  establishes  a  government  founded  upon  a  system  which  cannot- 
exist  consistently  with  the  universal  idea  of  the  true  theory  of  a  repub- 
lican government ;  that  under  the  forms  of  law  and  under  the  shield  of 
a  so-called  religion  deputizes  one  man  as  the  absolute  ruler  in  point  of 


€28  DIGEST    OF    ELECTION    CASES. 

fact  of  the  destiny  and  the  fate  of  120,000  people — polygamists,  Mormons 
■who  are  auti-polygamists,  and  Gentiles — whenever  such  a  hydra-headed 
monster  of  injustice,  iniquity,  and  anti-republicanism  shall  threaten  the 
peace  of  this  nation,  it  is  quite  time  that  Congress  should  assert  its 
prerogatives,  should  trample  down  ancient  precedents  if  they  stand  in 
its  way,  should  disregard  the  opinions  of  any  man,  no  matter  how  rep- 
utable, if  they  are  quoted  ever  so  persuasive,  and  call  a  halt  on  the 
^uemy  of  free  government. 

The  exercise  of  such  power  is  not  the  exercise  of  "  brute  force,"  as 
some  have  denominated  the  majoiity  action  of  this  committee;  it  is 
the  exercise  of  that  right  which  is  as  inherent  in  governments  as  in  cit- 
izens, the  right  of  self-defense,  of  self-preservation — the  right  and  au- 
thority and  duty  of  governments  to  protect  their  existence  from  all  en- 
emies, domestic  as  well  as  foreign. 

In  doing  this  you  may  run  counter  of  a  precedent  or  decision  or  opinion 
that  once  was  highly  esteemed ;  so  much  the  worse  for  the  precedent. 
The  naked,  rugged  issue  is  presented  to  this  House:  Shall  a  man  who 
lives  in  open,  boastful  adultery,  a  crime  proscribed  by  the  laws  of  God 
and  man,  but  canonized  by  the  people  he  seeks  to  represent,  prac- 
ticed and  taught  as  a  religious  duty  by  28  out  of  30  members  of  the 
legislature  who  demand  his  admission ;  who  admits  that  he  is  a  member 
•of  the  church  of  Latter-day  Saints,  with  all  that  such  an  admission  im- 
ports— its  open  hostility  to  our  laws,  its  anti-republicanism,  its  malefi- 
•  cent  and  malevolent  union  of  church  and  state — shall  such  a  man  be 
admitted  to  a  seat  in  Congress?  Is  he  eligible  to  the  ofiice  of  Delegate 
in  the  House  of  Eepresentatives?  We  think  not;  and  we  therefore 
join  with  the  majority  and  ask  that  the  report  of  the  majority  of  this 
committee  be  adopted  by  the  House. 


ME.  JACOBS'  VIEWS  ON  THE  PRIMA  FACIE  CASE. 

This  contest  may  be  resolved  into  the  following  propositions : 

First.  Is  the  governor's  certificate  such  a  muniment  of  title  as  con- 
fers the  seat  prima  facie  upon  the  contestant  ?  McCrary,  sec.  208,  de- 
clares that  "  It  is  enough  for  a  prima  facie  case  if  the  certificate  comes 
from  the  proper  officer  of  the  State,  and  clearly  shows  that  the  person, 
claiming  under  it  has  been  adjudged  to  be  duly  elected,"  &c.  It  is  made 
conclusive  of  the  ^nwia/«de  title  of  the  contestee,  because  it  is  a  record. 
To  be  a  record  it  must  import  absolute  verity.  It  derives  its  authority 
from  a  single  fact,  and  that  fact  is  that  the  holder  of  the  certificate  re- 
ceived the  highest  number  of  votes.  That  fact  may  be  omitted  and  the 
certificate  still  be  valid.  But  when,  in  addition  to  that  fact,  the  certi- 
fying officer  couples  with  it  the  statement  of  another  fact  not  necessary 
or  germane  to  his  determination,  and  upon  both  facts  argumentatively 
(therefore)  concludes  that  contestee  was  "  duly  elected,"  the  document 
fails  to  import  absolute  verity,  excites  doubt,  challenges  controversy, 
and  opens  the  door  to  investigation. 

Second.  The  contestee  having  failed  to  raaike  a  prima  facie  title  to  the 
seat,  and  he  being  the  only  person  bearing  the  certificate  of  the  only 
officer  competent  for  that  purpose,  it  would  seem  to  follow  that  the  only 
remaining  question  is  which  of  these  two  persons  having  the  qualifica- 
tions prescribed  by  the  Constitution  received  the  greatest  number  of 
votes  at  the  election  ? 

And  here,  at  the  threshold,  it  is  objected  that  the  contestant  has  failed 


CANNON    YS.    CAMPBELL.  629 

to  make  any  proof  of  the  allegation,  in  his  notice  of  contest  contained, 
that  he  received  the  highest  number  of  votes  at  such  election  within 
the  time  prescribed  by  law. 

To  which  it  may  be  replied  that  the  notice  of  contest  proceeded  upon 
the  assumption  that  the  certificate  of  the  governor  conferred  upon  the 
contestee  a  prima  facie  title  to  the  seat. 

But  if  I  am  right  in  my  first  conclusion,  and  the  contestee  has,  by 
reason  of  his  certificate,  no  valid  title  whatever,  then  how  can  the  bur- 
den of  proof  in  the  first  instance  be  said  to  be  upon  the  person  who  has 
named  himself  as  the  contestant  ?  Both  being  destitut-e  of  a  prima  fade 
title,  how  do  the  parties  differ  so  far  as  determining  which  has  the 
affirmative  in  the  contest. 

But  if  the  form  the  contest  has  taken  is  to  be  deemed  to  determine 
that,  then  we  are  brought  to  the  question,  Is  the  admission  contained  on 
page  32  of  the  Record  sufficient  to  put  the  contestee  to  proof  of  the 
affirmative  allegations  of  his  answer.  At  all  events  the  contestee  seems 
to  have  so  regarded  it,  when,  upon  notice  to  the  contestant,  he  pro- 
duced and  examined  witnesses  before  the  notary  to  establish  the  alien- 
age and  polygamy  of  the  contestant. 

For  this  and  other  reasons  stated  by  counsel  upon  the  argument,  and 
which  it  would  be  idle  to  recapitulate,  I  hold  that  the  contestee  held 
the  affirmative  in  the  introduction  of  proof  before  the  notary ;  and  not 
having  asked  to  be  relieved  from  his  default,  we  are  brought  to  the  in- 
quiry, Was  the  contestant  at  the  time  of  his  election  an  alien  I  Upon  this 
question  I  adopt  the  reasoning  of  the  chairman,  and  hold  that  the  judg- 
ment of  naturalization  cannot  be  attacked  collaterally,  and  in  conclusion^ 
constrained  as  I  am  by  my  views  of  the  principles  of  construction  to 
hold  that  George  Q.  Cannon  was,  at  the  time  of  the  election,  a  citizen 
of  the  United  States,  and  received  the  greatest  number  of  the  votes  cast, 
I  am,  nevertheless,  of  the  opinion  that  this  committee  should  recom- 
mend and  the  House  ought  to  refuse  to  admit  the  said  Cannon  to  a 
seat  as  a  Delegate  from  the  Territory  of  Utah,  for  the  reason  that, 
in  defiance  of  the  laws  of  Congress  and  the  sense  of  mankind,  he  is  liv- 
ing in  open  adultery  with  plural  wives,  and  advocating  the  doctrines 
and  practice  of  polygamy. 

And  so,  seeking  the  shelter  of  no  subterfuge  or  technicality,  I  stand 
on  this  proposition  for  the  dignity  and  honor  of  the  House. 


VIEWS  OF  MR.  BELTZHOOVER. 

In  the  matter  of  the  election  contest  of  George  Q.  Cannon  against 
Allen  G.  Campbell.    Territory  of  Utah. 

HISTORY  OF   THE  CASE. 

This  important  contest  is  fortunately  free  from  all  partisan  considera- 
tions, and  will,  therefore,  be  determined  upon  its  merits  and  the  plain 
principles  of  right.  The  election  out  of  which  it  arises  was  held  on 
November  2,  1880,  for  the  choice  of  a  Delegate  from  the  Territory  of 
Utah.  The  returns,  which  were  duly  filed  with  the  secretary  of  the  Ter- 
ritory, were  opened  and  canvassed  by  him  in  the  presence  of  the  gov- 
ernor of  the  Territory,  on  December  14, 1880.  The  canvass  of  the  votes, 
which  was  concluded  on  January  8, 1881,  showed  that  George  Q.  Cannon 
received  18,568  votes,  and  Allen  G.  Campbell  received  1,357  votes.    The 


630  DIGEST    OF   ELECTION    CASES. 

law  provides  that  the  person  having  the  highest  number  of  votes  shall 
be  declared  by  the  governor  to  be  elected.  The  governor,  however,  in 
the  mistaken  belief  that  he  had  the  right  to  go  behind  the  returns,  heard 
evidence  and  arguments  to  show  that  Mr.  Cannon  was  an  alien  and 
polygamist,  and  on  these  grounds  finding,  them,  as  he  believed,  sustained, 
declared  Mr.  Cannon  ineligible  and  disqualified  to  serve  as  a  Delegate. 
The  governor  further  decided,  under  an  erroneous  view  of  the  law,  that 
Mr.  Cannon  being  ineligible,  the  votes  cast  for  him  were  void,  and  Mr. 
Campbell  being  a  citizen  and  eligible,  and  having  received  the  next 
highest  number  of  votes,  was  elected.  The  governor  accordingly  gave 
Mr.  Camijbell  a  certificate  of  election,  and  filed  among  the  records  of 
the  Territory,  in  the  oflice  of  the  secretary  thereof,  an  elaborate  opinion 
containing  a  full  statement  of  the  facts.  The  secretary  of  the  Territory, 
on  January"  10,  1881,  gave  Mr.  Cannon  a  certified  copy  of  the  opinion 
and  declaration  of  the  governor,  and  also,  on  January  20,  1881,  gave 
him  a  certified  abstract  of  all  the  returns. 

Mr.  Cannon  notified  Mr.  Campbell,  on  February  4, 1881,  that  he  would 
contest  his  seat  on  the  ground  that  he.  Cannon,  had  received  a  large 
majority  of  the  votes  cast.  On  February  24,  1881,  Mr.  Campbell  re- 
plied to  Mr.  Cannon's  notice  that  he  was  not  elected,  and,  if  elected,  was 
disqualified  by  reason  of  his  alienage  and  polygamy.  No  testimony 
was  taken  by  Mr.  Cannon  in  sui)port  of  his  notice  during  the  time  al- 
lowed to  him  by  law,  but  on  May  9, 1881,  and  subsequently  thereto,  tes- 
timony was  taken  by  Mr.  Campbell  to  show  that  Mr.  Cannon  was  a  po- 
lygamist aud  an  unnaturalized  alien,  and  by  Mr.  Cannon,  in  reply,  to 
show  his  citizenship. 

The  certificates  held  by  Mr.  Cannon  and  Mr.  Campbell  and  all  the 
papers  and  testimony  in  the  case  were  placed  in  the  custody  of  the 
Clerk  of  the  Forty-sixth  Congress,  and  by  him  were  handed  over  to  his 
successor  at  the  organization  of  the  Forty-seventh  Congress. 

When  the  Forty-seventh  Congress  was  organized  and  the  Delegates 
from  the  Territories  were  called  to  be  sworn,  objection  was  made  to 
both  Mr.  Campbell  and  Mr.  Cannon,  and  neither  was  admitted.  After  a 
full  discussion  of  the  question  as  to  which  of  the  two  gentlemen  had  the 
prima  fiicie  right  to  the  seat,  it  was  resolved  by  the  House,  on  January 
13,  1882— 

That  the  i^apers  in  relation  to  the  right  to  a  seat,  as  a  Delegate  from  the  Territory 
of  Utah,  be  referred  to  the  Coiumittee  on  Elections,  with  Instructions  to  report,  at  as 
early  a  day  as  practicable,  as  to  the,  prima  facie  right  or  the  linal  right  of  the  claim- 
ants to  the  seat,  as  the  committee  shall  deem  proper. 

This  resolution  clearly  made  the  case  a  special  one  and  took  it  out 
of  the  regular  order  under  which  cases  go  to  the  Committee  on  Elec- 
tions under  the  law  and  the  standing  rule  of  the  House,  Both  the 
prima  facie  and  final  rights  were  argued  by  the  parties  before  the  com- 
mittee, but  it  would  not  be  proper  to  prolong  the  contest  by  dividing  and 
reporting  on  the  jyrima  facie  title,  when  the  committee  are  ready  to  pass 
upon  the  final  right  and  thereby  dispose  of  the  case. 

WERE  THE   CERTIFIED  RETURNS  EVIDENCE? 

The  first  question  which  was  presented  for  the  determination  of  the 
committee  was:  Are  the  certified  copies  of  the  returns  of  the  election 
from  all  the  counties  in  the  Territory  evidence  ? 

During  the  thirty  days  allowed  Mr.  Cannon  under  the  law  for  taking 
testimony  in  support  of  his  notice  of  contest  he  declined  to  take  any 
testimony,  but  attached  to  his  notice  copies  of  all  the  returns  of  election 


CANNON    VS.    CAMPBELL.  631 

from  all  the  coimties  iu  the  Territory  filed  in  the  office  of  the  secretary 
of  the  Territory,  uuder  the  seal  of  said  office.  He  also,  subsequently, 
after  the  time  had  expired  for  taking  testimony  by  him  in  chief,  filed 
with  the  Clerk  of  the  House  certified  copies  of  the  same  returns,  and 
they  are  now  printed  in  the  Record  and  are  before  the  committee  a& 
part  of  the  papers  in  the  case. 

The  counsel  for  Mr.  Campbell,  the  coutestee,  objected  to  these  copies 
and  stopped  on  the  threshold  of  the  argument  before  the  committee, 
and  asked  to  have  the  contest  dismissed  for  the  reason  that  Mr.  Can- 
non had  not  offered  any  competent  testimony  to  sustain  his  case.  I 
am  of  the  opinion  that  these  certified  copies  are  evidence,  for  several 
reasons. 

First.  The  returns  are  made  to  and  filed  with  the  secretary  of  the 
Territory,  in  conformity  to  law,  and  as  a  part  of  the  records  of  his  office. 
The}'  are  compiled  by  the  clerks  of  the  several  counties  from  the  pre- 
cinct returns,  and  are  sent  to  the  secretary  of  the  Territory  under  the 
provisions  of  a  well  guarded  election  law.  They  are,  therefore,  records 
of  the  secretary's  office,  upon  which  the  important  rights  of  the  people 
to  representation  depend,  and  can  be  certified  for  the  purposes  of  evi- 
dence as  any  other  record. 

Second.  The  election  was  held,  the  canvass  was  made,  the  result  de- 
clared, and  the  certificates  issued,  under  sections  21  and  22  of  the  Terri- 
torial act  of  1878,  and  section  18G2  of  the  Revised  Statutes  of  the  United 
States.  This  is  very  clearly  recognized  by  the  governor  all  through  his 
opinion  and  in  the  certificate  which  he  issued  to  Mr.  Campbell.  This 
being  so,  the  governor  had  only  the  right  to  declare  who  was  elected, 
and  the  secretarj'  had  the  right  to  certify  the  declaration.  The  certifi- 
cate of  the  governor  was,  therefore,  without  authority  of  law.  The  cer- 
tificate of  tlijl  secretary  of  the  Territory,  which  gives  the  whole  declara- 
tion of  the  result  by  the  governor  when  the  returns  were  opened  and 
canvassed  in  his  presence  by  said  secretary,  is  the  legal  certificate. 
This  certificate  clearly  gives  Mr.  Cannon  the  prima  facie  right  to  the 
seat,  and  the  copies  of  the  returns,  which  were  filed  at  the  same  time 
with  the  certificate,  corroborate  that  right.  They  are  a  part  of  the  title, 
which  for  the  further  consideration  of  the  case  is  good  enough  without 
them  until  it  is  assailed  by  testimony  going  to  the  legality  and  number 
of  the  votes  cast.    Ko  such  testimony  was  given. 

WHO   WAS  ELECTED  ? 

This  brings  us  to  the  consideration  of  the  second  inquiry  :  "Who  was 
elected  and  returned  by  the  people  ? 

This  question  I  will  not  take  time  to  discuss.  I  am  satisfied  clearly 
and  beyond  all  doubt  that  Mr.  Cannon  received  a  very  large  majority 
of  the  votes  cast  in  conformity  to  the  laws  of  the  Territory,  and  was 
duly  elected  and  returned.  I  desire  to  emphasize  this  point  for  the 
reason  that  I  will  not  consent  that  the  questions  of  election  and  return 
shall  ever  be  determined  by  anything  but  the  honest  majority  of  votes 
cast.  I  do  not  believe  that  anything  but  votes  can  elect,  and  that  the 
permanence  of  representative  government  depends  more  upon  faithfully 
observing  and  respecting  this  principle  than  anything  else.  This  dis- 
poses of  the  claim  of  Mr.  Campbell  that  he  was  elected  and  returned, 
although  he  only  received  a  small  minority  of  the  votes  cast.  The  doc- 
trine tliat  when  the  majority  candidate  is  ineligible  or  disqualified,  the 
minority  candidate,  being  qualified,  is  elected  is  utterly  repudiated  in 
almost  all  the  States  of  this  Union  and  by  the  uniform  decisions  of  Con. 


632  DIGEST    OF    ELECTION    CASES. 

gress.    Under  no  circumstances,  therefore,  lias  Mr.  Campbell  any  claim 
or  title  to  be  seated  in  this  contest. 

IS  MR.   CANNON  A  CITIZEN  ? 

Having  concluded  that  Mr.  Cannon  was  elected  and  returned,  there 
remain  the  questions  :  First,  is  he  disqualified  because  he  is  an  alien  ; 
second,  is  he  disqualified  because  he  is  an  open  and  avowed  polyga- 
mist? 

I  have  given  the  subject  of  Mr.  Cannon's  citizenship  careful  exami- 
nation, and  have  concluded  that,  under  the  decision  of  the  Supreme 
Court  of  the  United  States  in  Campbell  r«.  Gordon,  6  Crauch,  176,  the 
certificate  of  naturalization  held  by  him  is  valid.  It  is  in  strict  con- 
formity of  the  spirit  and  jjolicy  of  our  Government  to  give  a  very  liberal 
construction  of  the  laws  and  regulations  governing  naturalizations. 
We  are  a  nation  whose  progress  and  prosperity  are  largely  built  upon 
the  emigration  and  absorption  of  the  millions  of  people  who  have  come 
and  will  continue  to  come  to  us  from  foreign  lands.  A  learned  judge 
has  justly  said : 

If  every  naturalized  citizen  must  always  be  prepared  with  his  proofs  to  maintain 
the  grounds  upon  which  he  obtaiued  hiapap-rs  iu  all  courts  and  places  in  which  they 
maybe  brought  into  question  the  boon  of  citizenship,  which  is  so  liberally  bestowed, 
would  be  barely  worth  possessing,- 

WHAT  IS  POLYGAMY  ? 

"We  come  then  to  the  great  controlling  question  iu  the  contest :  Is  Mr. 
Cannon  disqualified  to  sit  as  a  Delegate  from  the  Territory  of  Utah  be- 
cause he  is  a  polygamist  ?  H 

AYhat  is  polygamy  ?  What  are  its  characteristics,  doctrines,  and 
practices,  and  how  does  it  afl^ect  its  followers  and  adherents  in  their  re- 
ations  and  loyalty  to  the  Government  ? 

We  can  give  the  most  correct  and  compendious  answers  to  these  in- 
quiries by  quoting  from  the  majority  report  of  the  Committee  on  Elec- 
tions, made  in  the  Fortieth  Congress,  in  the  contested  election  case  of 
McGrorty  vs.  Hooper.  The  committee  went  into  the  subject  elaborately 
and  took  testimony  from  every  source  which  was  within  their  reach. 
They  say : 

That  by  reason  of  polygamy  in  Utah  great  crimes  have  been  committed  and  hav© 
been  let  go  unwhipped  of  justice.  Open  violation  of  the  authority  of  this  Government 
has  frequently  occurred.  The  sanctity  of  the  ermine  has  been  profaned,  the  course  of 
justice  obstructed.     Organized  assassination  has  been  frequently  perpetrated. 

The  revelations  of  the  seer  have  a  higher  authority  than  the  laws  of  Congress,  The 
sermons  of  the  Mormon  apostles  have  an  edifying  effect  in  Salt  Lake  City  quite  equal 
in  the  opinion  of  their  followers  to  those  of  certain  preachers  in  the  cities  of  the  East, 
and  of  more  weight  than  a  judicial  decision.  Intolerance,  wrangling,  violence,  and 
polygamy  have  marred  the  administration  of  our  laws  in  Utah,  and  have  weakened 
the  authority  of  the  United  States,     Why  ? 

Because  the  organic  law  of  the  Territory  does  not  remedy  the  evils  local  and  pecu- 
liar to  Utah,  thereby  leaving  the  dominion  and  control  of  the  Territory  and  its  re- 
sources completely  in  the  hands  of  the  hierarchy  of  the  Mormon  society. 

Because  the  monopoly  of  wealth  and  power  in  the  Territory  is  to  a  great  extent  in 
the  hands  of  the  Mormon  leaders,  excluding  competition  from  the  so-called  Gentiles, 
t.  e.,  citizens  of  the  United  States  not  members  of  the  Mormon  society,  the  preference 
being  by  custom  given  to  a  Mormon  whenever  competition  is  likely  to  injure  the 
Mormon  interest. 

Polygamy  prevails  in  spite  of  express  laws  of  the  United  States,  in  open  outrage  of 
every  sacred  family  tie,  controlling  the  social  organization  of  the  community,  and 
shaming  the  sense  of  propriety  so  long  aud  well  established  among  all  races  of  Euro- 
peans on  this  continent.     No  officer  of  the  United  States,  civil  or  military,  can  hope 


CANNON    VS.    CAMPBELL.  635 

to  exert  any  salutary  influence  over  this  society  while  polygamy  is  allowed  in  defi- 
ance of  his  authority  and  against  the  law  of  the  Government  he  represents. 

Polygamy  must  be  abolished  in  all  this  Territory,  or  the  power  of  this  Government 
will  be  held  in  contempt  by  every  class  of  inhabitants.  Through  its  influence  a  so- 
cial ban  is  put  on  all  Christian  women  who  remain  true  to  the  laws  and  customs  of 
their  country,  and  the  precepts  of  their  faith. 

Isolated  from  all  other  influences  than  their  own  peculiar  customs  and  prejudices, 
the  Mormon  population  are  not  amenable  to  the  arguments  usually  applied  to  en- 
lighten or  reform  mankind.  A  revelation  from  the  seer  or  a  strong  inducement  to  mi- 
grate seem  the  only  easy  remedies.  Polygamy  is  synonymous  with  bigamy.  Bigamy 
is,  under  our  law,  a  crime,  and  polygamy  is  a  monstrous  bigamy.  Under  the  Mormon 
organization  it  seems  to  threaten  to  become  incest.  The  intermarriage  of  the  lead- 
ing families  has  made  the  usual  definitions  of  fixing  relationship  very  complex,  if  not 
impossible,  under  the  laws  of  the  United  States. 

To  the  Mormons  such  definitions  of  polygamy  and  its  developments  are  perhaps 
harsh,  but  your  committee  use  only  the  definitions  established  among  and  by  the  peo- 
ple of  the  United  States  by  common  law  and  common  decency.  The  instances  of  in- 
cest among  the  Mormons  are  taken  from  the  printed  works  on  the  customs  of  that 
society,  and  your  committee  refer  to  them  for  the  reliability  of  the  statement.  There 
seems  to  your  committee,  however,  abundant  proof  of  the  licentious  practices  under 
the  law  regulating  marriages  in  Utah  to  call  for  vigorous  enforcements  of  the  exist- 
ing law  of  Congress'on  the  subject  of  polygamy.  A  conflict  between  monogamy  and 
polygamy  has  been  inaugurated  in  defiance  of  our  laws  by  the  Mormons  themselves. 

And  this  licentious  custom  of  marriage  or  reckless  abuse  of  that  sacred  rite  is  one 
of  the  most  glaring  and  practical  proofs  of  the  aggressive  and  dangerous  character  of 
a  system  which  grows  at  the  will  or  in  obedience  to  the  lust  of  a  political  ruler  styl- 
ing himself  a  prophet. 

Toleration  of  religious  views  is  a  holy  duty  enforced  on  Congress  by  the  Constitu- 
tion, but  no  lawdoes  or  can  exist  which  permits  toleration  of  a  practice  hostile  to  the  safety 
of  society.  Such  a  practice  may  be  introduced  by  the  best  and  highest  human  author- 
ity, but  whether  under  the  name  of  prophet,  priest,  or  king  it  matters  not  so  long  a» 
the  practice  introduced  be  against  established  law  of  the  land  or  fatal  to  the  welfare 
of  the  State. 

There  are  other  practices  under  the  hierarchy  of  Utah  which  militates  in  the  opin- 
ion of  your  committee  against  the  principles  of  good  republican  government.  But 
the  origin  of  all  these  existing  evils,  an«l  the  certain  source  of  innumerable  future 
evils  in  Utah,  is  in  the  prophetic  power  of  the  head  of  the  society  which  rules  there. 
The  union  of  church  and  State,  the  combined  sanctity  of  the  voice  of  God  and  the  will 
of  the  people,  arm  the  chosen  ruler  of  that  organization  with  spiritual  and  temporal 
power. 

Has  that  power  been  hostile  to  the  Government  of  the  LTnited  States?  Your  com- 
mittee believe  that  it  is,  and  has  been  hostile  rather  from  the  inherent  spirit  of  its- 
creation  than  from  any  design  on  the  part  of  that  people. 

The  Secretary  of  War  in  his  report  of  December,  1857,  says : 

"The  Territory  of  Utah  is  peopled  almost  exclusively  by  the  religious  sect  known  as 
Mormons.  They  have  substituted  for  the  laws  of  the  land  a  theocracy  having  for  its 
head  an  individual  whom  they  profess  to  believe  a  prophet  of  God.  This  prophet  de- 
mands obedience,  and  receives  it  implicitly  from  his  people,  in  virtue  of  what  he  assures 
them  to  be  authority  derived  from  revelations  received  by  him  from  Heaven. 

"  Whenever  he  finds  it  convenient  to  exercise  any  special  command,  these  opportune 
revelations  of  a,  higher  law  come  to  his  aid.  From  his  decrees  there  is  no  appeal  j 
against  his  will  there  is  no  resistance. 

"  From  the  first  hour  they  fixed  themselves  in  that  remote  and  almost  inaccessible 
region  of  our  territory  from  which  they  are  now  sending  defiance  to  the  sovereign 
power  their  whole  plan  has  been  to  prepare  for  a  successful  secession  from  the  au- 
thority of  the  United  States  and  a  permanent  establishment  of  their  own." 

On  the  13th  of  February,  1863,  Senator  Wade,  in  a  report  submitted  to  the  Senate 
of  the  United  States  in  reference  to  Utah  aftairs,  used  the  following  language : 

''  The  customs  which  have  prevailed  in  all  our  Territories  in  the  government  of  pub- 
lic aftairs  have  had  but  little  toleration  in  the  Territory  of  Utah  ;  but  iu  their  stead 
there  appears  to  be,  overriding  all  other  influences,  a  sort  of  Jewish  theocracy,  gradu- 
ated to  the  condition  of  that  Territory.  This  theocracy  having  a  supreme  head  who 
fovern  and  guides  every  attair  of  importance  in  the  church,  and  practically  in  the 
erritory,  is  the  only  real  power  acknowledged  here,  and  to  the  extension  of  whose  in- 
terests every  person  in  the  Territory  must  directly  or  indirectly  conduce.  We  have 
here  the  first  exhibition,  within  tbe  limits  of  the'  United  States,  of  a  church  ruling 
the  State.''     (Thirty-seventh  Congress,  third  session.  Rep.  Com.,  No.  87.) 

In  January,  1866,  certain  resolutions  were  referred  to  the  Committee  on  the  Terri- 
tories of  the  House  of  Representives,  instructing  them  to  "  inquire  and  ascertain  what 
means,  civil  or  militarj',  might  lawfully  be  resorted  to  to  eftectuaUy  eradicate  the  eyil 


€34  DIGEST  OF  ELECTION  CASES. 

of  polygamy  from  the  land,  what  legislation  was  needed  for  that  purpose,  and  why 
the  law  against  polygamy  was  not  enforced";  also  a  resolution  instructing  the  same 
committee  to  inquire  into  the  expediency  of  reporting  a  bill  providing  for  the  repeal 
of  the  law  organizing  the  Territory  of  Utah,  and  for  dividing  said  Territory  and 
attaching  a  portion  thereof  to  the  State  of  Nevada,  and  the  residues  to  the  Territories 
contiguous  to  Utah. 

That  committee,  through  Hon.  J.  M.  Ashley,  chairman,  reported  July  23,  1866,  that 
they  were  unable  to  agree  upon  any  plan  which  seemed  to  them  to  promise  a  practical 
solution  of  the  abuses  and  evils  comijlained  of,  and  which  were  admitted  to  exist. 
They  postponed  the  further  consideration  of  the  matter  and  reported  the  testimony. 

The  committee  state  that  "the  testimony  discloses  the  fact  that  the  laws  of  the 
United  States  are  openly  and  defiantly  violated  throughout  the  Territory,  and  that 
an  armed  force  is  necessary  to  preserve  the  peace  and  give  security  to  the  lives  and 
property  of  citizens  of  the  United  States  residing  therein."  (H.  Rep.  No.  96,  Thirty- 
ninth  Congress,  first  session.') 

#  »  #  *  *r  »  # 

Express  statute  passed  July,  1862  (12  Stat,  at  L.,  501,  502),  provides  suitable  penal- 
ties for  the  violation  of  the  law  against  polygamy.     Have  the  people  of  Utah  obeyed 

this  statute  ? 

»  #  *  «  «  *  * 

Did  this  community  then  submit  to  that  law  and  obey  it  ?  Or  have  they  since  per- 
sistently lived  in  its  open  violation  ?  Polygamy  was  alarmingly  increased  since  the 
passage  of  the  law.  Brigham  Young  himself  was  one  of  the  first  to  violate  it,  pub- 
licly espousing  another  wife  on  the  29th  of  January,  1863. 

In  the  summer  of  1863  Judge  Drake,  upon  the  hearing  of  a  Imbeas  corpus  case,  ordered 
that  a  girl  who  had  been  inveigled  into  a  "iilural  "  marriage  with  a  Mormon  bishop 
should  be  returned  to  the  custody  of  her  mother,  and  the  marshal  was  ordered  to  exe- 
cute the  decree.  But  the  peoj)le  seized  the  girl  as  she  was  passing  out  of  the  court- 
house, bore  her  off  in  triumph,  and  delivered  her  to  the  bishop. 

Judge  Drake  tells  us  that  "  since  the  commencement  of  1865  polygamy  has  increased 
at  least  one  hundred  per  cent,  throughout  the  Territory.  Previous  to  the  year  1863 
this  doctrine  or  practice  was  not  generally  held  to  be  a  religious  necessity,  but  merely 
a  tolerance  to  be  indulged  in  by  those  who  desired  it.  It  is  now  held  to  be  a  cardinal 
point.  That  and  the  shedding  of  the  blood  of  apostates  to  save  their  souls  are  the 
two  soul-saving  doctrines  of  the  Mormon  faith."  (Statement  of  Hon.  Thomas  J. 
Drake,  H.  Miss.  Doc,  No.  35,  second  session  Fortieth  Congress,  pp.  9,  10.) 

The  question  then  arises,  Shall  a  community  be  represented  in  the  Congress  of  the 
United  States  who  are  thus  living  in  open  violation  of  a  law  passed  for  the  protection 
of  the  highest  interests  of  society  and  of  the  state  ? 

We  have  thus  considered  the  question  in  reference  to  polygamy  generally,  without 
referring  specially  to  those  obscene  and  disgusting  practices  which  are,  in  this  case, 
concomitants.  Incest  in  its  various  forms  and  under  various  names  is  practiced  and 
encouraged. 

The  marriage  of  a  man  with  the  mother  and  her  daughters  indiscriminately  and 
marriage  with  a  half  sister  are  permitted.  William  Hepworth  Dixon  says  that 
Brigham  Young  admitted  to  him  in  conversation  that  he  saw  no  objection  to  the  mar- 
riage of  brother  and  sister.  But  he  spoke  for  himself  only,  as  he  thought  the  church 
was  not  yet  prepared  for  so  strong  a  doctrine.  (New  America,  by  William  Hepworth 
Dixon,  p";  216.) 

By  reference  to  a  sermon  preached  by  Young  April  8,  1853,  and  reported  in  the 
Deseret  News,  vol.  iii.  No.  12,  it  will  be  seen  that  he  thought  it  (the  church)  prepared 
for  another  doctrine  equally  strong — the  marriage  of  a  mother  with  her  own  son. 

Such  are  the  doctrines  and  practices  which  are  sought  to  be  established  and  incor- 
porated into  the  framework  of  society  in  the  heart  of  this  continent.  Is  it  not  time 
that  the  representative  of  this  corrupt,  licentious,  this  tyrannical,  traitorous,  and 
bloody  priesthood  should  be  sent  back  to  his  constitutents,  with  instructions  to  aban- 
don their  unwarrantable  assumptions  of  temporal  power,  obey  the  laws,  and  remodel 
their  government  so  that  it  shall  conform  to  the  spirit  of  our  free  institutions? 

The  following  facts,  which  are  i)ertiiieut  to  the  inquiry  now  in  hand, 
are  found  from  the  foregoing  extract : 

1.  Polygamy  is  the  basis  of  a  fanatical  hierarchy  which  is  antagonistic 
to  our  institutions  and  laws,  and  no  one  who  is  subject  to  it  can  be  well 
•disposed  toward  the  Government  of  the  United  States. 

2.  It  is  a  disgrace  to  our  civilization  and  offensive  to  the  moral  sense 
of  mankind. 

3.  It  breeds  open  defiance  of  our  laws,  and  renders  a  republican  form 
of  government  impossible  where  it  prevails. 


CANNON    VS.    CAMPBELL.  635 

4.  It  is  hostile  to  civil  society  aud  fatal  to  the  welfare  of  the  State. 

IS  MR.   CANNON  A  POLYGAMIST  f 

We  next  inquire,  is  Mr.  Cannon  a  polygamist?  That  he  is,  in  the 
fullest,  broadest,  and  most  complete  sense,  is  proven  by  his  own  con- 
fession, over  his  own  signature,  in  the  following  language  : 

lu  the  matter  of  George  Q.  Cauuon.  Contest  of  Alleu  G.  Campbell's  right  to  a  seat  in 
the  House  of  Representatives  of  the  Forty-seventh  Congress  of  the  United  States 
as  Delegate  from  the  Territory  of  Utah. 

I,  George  Q.  Cannon,  contestant,  protesting  that  the  matter  in  this  paper  contained 
is  not  relevant  to  the  issue,  do  admit  that  I  am  a  member  of  the  Church  of  Jesus 
Christ  of  Latter-day  Saints,  commonly  called  Mormons-;  that  in  accordance  with  the 
tenets  of  said  church  I  have  takeu  plural  wives,  who  now  live  with  me,  and  have  so 
lived  with  me  for  a  number  of  years,  and  borne  me  children.  I  also  admit  that  in  my 
public  addresses  as  a  teacher  of  my  religion  in  Utah  Territory  I  have  defended  said 
tenet  of  said  church  as  being,  in  my  belief,  a  revelation  from  God. 

GEO.  Q.  CANNON. 

This  paper  was  given  by  Mr.  Cannon  to  prevent  the  contestee  from 
going  into  the  proof  fully  aud  squarely,  which  he  proposed  to  do  by  call- 
ing witnesses  who  would  have  been  compelled  to  disclose  the  facts.  The 
paper  was  intended  to  be  an  uuqualilied  surrender  and  agreement  as  to 
the  fact  of  his  being  a  pol.vgamist  in  the  broadest  sense,  and  must  be  so 
considered.  It  therefore  distinguishes  this  contest  from  all  those  that 
have  preceded  it  in  which  this  question  of  polygamy  was  raised.  In  the 
last  contest  which  Mr.  Cannon  had  with  Mr.  Maxwell,  in  the  Forty-third 
Congress  (1874),  he  denied  most  emphatically  that  he  was  "  living  with 
four  wives  or  living  or  cohabiting  with  any  wives  in  defiant  or  willful 
violation  of  the  law  of  Congress  of  1862."  He  denied  that  he  was  then 
"  living,  or  had  ever  lived,  in  violation  of  the  laws  of  God,  man,  his 
country,  decencj',  or  civilization,  or  of  any  law  of  the  United  States." 
These  broad  denials  on  the  very  issue  which  was  the  chief  one  involved 
in  that  contest  doubtless  had  a  great  deal  to  do  with  the  finding  in  Mr. 
Cannon's  favor. 

But  in  this  contest  we  have  not  only  no  denial,  but  an  open  confession. 
We  have  a  man  knocking  for  admission  at  our  doors  who  is  a  confessed 
preacher  and  practicer  and  apostle  and  defender  of  ijolygamy  in  its  most 
odious  form  ;  who  declares  that  he  is  a  member  of  the  Mormon  Church ; 
who,  in  obedience  to  the  doctrines  of  that  church  which  he  claims  teach 
that  it  is  right  and  righteous  to  marry  more  than  one  wife,  has  taken 
plural  wives  and  lived  and  cohabited  with  them,  and  they  have  borne 
him  children,  aud  who  has  taught  and  teaches  this  doctriue  as  a  revela- 
tion from  God.  The  plain  aud  unambiguous  question  now  is  whether 
such  a  man,  under  the  law  of  the  land  and  the  customs  and  pn^-oga- 
tives  of  this  House,  is  qualified  to  hold  a  seat  as  a  Delegate  from  the 
Territory  of  Utah. 

The  Parliament  of  England,  one  of  the  greatest  legislative  bodies  on 
the  earth,  has  just  expelled,  by  an  overwhelming  vote,  a  person  who 
sought  to  hold  a  seat  among  its  members  because  iu  the  light  of  this 
Christian  century  he  proftmely  avoM'ed  his  disbelief  iu  the  existence  of 
a  God.  This  could  not  have  been  done  in  this  Government,  under 
whose  Constitution  "  no  religious  test  shall  ever  be  required  as  a  quali- 
fication for  any  office  under  the  United  States."  But  polygamy  has 
been  held  by  the  Supreme  Court  of  the  nation  not  to  be  religion  but  a 
crime,  aud  will  it  be  just  for  this  the  highest  legislative  tribunal  of  this 
great  Christian  Eepublic  to  admit  to  its  membership  one  who  openly 
aud  unblushiugly  charges  God  with  inspiring  and  revealing  and  com- 


636  DIGEST    OF    ELECTION    CASES. 

manding  to  be  preached  and  taught  among  men  a  doctrine  not  only  of 
filth  and  lust,  but  of  hostility  to  our  Government  and  defiance  to  our 
laws  ?  A  doctrine  which  profanes  and  defies  the  pure  and  holy  law 
which  binds  the  families  and  forms  thereby  the  great  foundation  of  so- 
cial virtue  on  which  a  free  nation  must  rest ;  a  doctrine  which  insults 
the  sacred  titles  of  mother  and  wife,  and  sister  and  daughter;  a  doc- 
trine which  ignores  the  mighty  progress  of  mankind  and  defies  the  civ- 
ilization and  literature  and  philosophy  which  Christianity  has  brought 
to  light  among  men. 

WHAT   QUALIFICATIONS  MUST    DELEGATES  HAVE? 

But  notwithstanding  that  polygamy  is  an  institution  of  the  character 
we  have  stated,  and  that  Mr.  Cannon  is  its  representative,  it  is  con- 
tended that  under  the  Constitution  and  law  we  have  no  right  to  re- 
fuse him  a  seat  as  Delegate  from  Utah.  This  leads  us  to  inquire  into 
the  powers  of  Congress  over  the  Territories,  and  how  far  this  House 
has  the  right  to  prescribe  qualifications  for  the  admission  of  Delegates 
therefrom. 

The  only  portion  of  the  Constitution  of  the  United  States  which  re- 
fers to  the  Territories  is  Article  IV,  section  3,  clause  2,  which  provides: 

"  The  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States." 

This  clause  of  the  fundamental  law  has  received  the  most  learned  and 
elaborate  consideration  by  the  Supreme  Court  in  Scott  vs.  Sanford  (19 
Howard,  393,  «&c.),  wherein,  after  going  fully  into  the  whole  history  of 
the  Territories  from  the  time  of  the  first  cession  to  the  Government,  it 
is  held  that  this  clause — 

Applies  only  to  territory  within  the  chartered  limits  of  some  one  of  the  States  when 
they  were  colonies  of  Great  Britain,  and  which  was  surrendered  by  the  British  Gov- 
ernment to  the  old  confederation  of  the  States  in  the  treaty  of  peace.  It  does  not 
apply  to  territory  acquired  by  the  present  Federal  Government  by  treaty  or  conquest 
from  a  foreign  nation. 

To  all  other  territory  it  is  held  that  the  Constitution  does  not  extend, 
and  cannot  be  extended  by  Congress,  except  in  so  far  as  Congress  may 
enact  the  provisions  of  the  Constitution  into  a  part  of  the  organic  law  of 
such  territory.  This  has  been  done  in  regard  to  Utah,  first  by  the  act 
of  Congress  which  organized  that  Territory,  and  which  provides  that 
"  the  Constitution  and  laws  of  the  United  States  are  hereby  extended 
over  and  declared  to  be  in  force  in  said  Territory  of  Utah,  so  far  as  the 
same  or  any  provision  thereof  may  be  applicable." 

The  Revised  Statutes,  sec.  1891,  provides  in  somewhat  diftertat  lan- 
guage, but  of  the  same  purport,  that  "  the  Constitution  and  all  linws  of 
the  United  States  which  are  not  locally  inapplicable  shall,"  &c. 

The  Constitution  and  all  the  laws  of  the  United  States  are,  therefore, 
a  part  of  the  statute  law  of  the  Territory  of  Utah,  so  far  as  they  are 
applicable  locally  to  that  Territory. 

Now,  what  was  the  design  of  the  fraraersofthe  Constitution  in  refer- 
ence to  the  Territory  which  they  proAided  for  in  the  clause  which  we 
have  quoted  above  ?  The  history  of  the  subject  clearly  shows  that  they 
intended  to  commit  the  unorganized  Territories  wholly  to  the  discretion 
and  unlimited  power  of  Congress.  This  is  so  decided  by  the  courts  in 
all  the  cases  in  which  tlie  subject  is  considered ;  this  was  so  held  in 
Scott  vs.  Sandford  [sujpra),  and  Judge  Xelson,  in  Benner  vs.  Porter,  (9 
Howard,  235),  says : 


CANNON    VS.    CAMPBELL.  637 

They  are  not  organized  nnder  the  Constitution  nor  subject  to  its  complex  distribu- 
tion of  the  powers  of  government  or  the  organic  law,  but  are  the  creatures  exclu- 
sively of  the  legislative  departmint,  and  svhjict  to  its  supeiTision  and  control. 

It  is  held  by  Judge  Story  that — 

The  power  of  Congress  over  the  public  Territories  is  clearly  exclusive  and  univereal, 
and  their  legislation  is  subject  to  no  control,  but  is  absolute  and  unlimited,  unless  so  far 
as  it  is  affected  by  stipiilations  in  the  cessions,  or  by  the  ordinance  of  1787,  under 
which  any  part  of  it  has  been  settled.  (Story,  Constitution,  sec.  1328  ;  Rawle,  Con- 
stitution, p.  237  ;  1  Kent's  Commentaries,  p.  243. ) 

The  Supreme  Court  of  the  United  States,  in  a  very  recent  case,  says : 
The  power  is  subject  to  no  limitations.     (Gibson  vs.  Chouteau,  13  Wall.,  99.) 

See  also  Stacey  vs.  Abbott  (1  Am.  Law,  T.  E.,  84),  where  it  is  held  by 
the  supreme  court  of  one  of  the  Territories  that  they  "are  not  organized 
under  the  Constitution  ;  they  are  exclusively  the  creatures  of  Congress." 

But  there  is  something  more  shown  by  the  history  of  the  clause  in  the 
Constitution  in  reference  to  Territories  and  by  the  decisions  of  the  courts 
thereon.     It  is  clear  from  both  these  that  it  was  never  intended  that  the 
status  of  the  Territories  should  in  any  respect  approach  so  near  th 
haracter  and  position  of  sovereign  States  as  to  require  that  whatever 
agents  these  Territories  might  be  entitled  to  on  the  floor  of  Congress 
cshould  have  the  status  and  qualifications  of  members  of  Congress.    The 
Territories  in  the  minds  of  the  framers  of  the  Constitution  had  none  of 
the  rights  and  attributes  of  the  States.    jS^o  other  ijarts  of  the  Consti- 
tution were  made  to  apply  to  them  except  the  clause  we  have  quoted. 
On  the  contrary,  they  were  spoken  of  as  property,  and  power  was  given 
to  Congress  to  dispose  of  them  as  property,  and  to  make  all  needful  rules 
and  regulations  respecting  them  as  other  property  of  the  United  States. 
They  were  put  in  the  same  category  with  the  other  chattels  of  the  Gov- 
ernment.   There  is,  therefore,  nothing  in  the  Constitution  which  will 
justify  us  in  believing  in  the  light  of  its  history  that  the  qualifications 
of  agents  who  might  be  appointed  to  look  after  the  interests  of  the  Ter- 
ritories on  the  floor  of  Congress  should  be  the  same  or  even  like  those 
of  members  of  Congress.    This  is  so,  we  maintain,  with  regard  even  to 
that  territory  over  which  the  Constitution  extends  directly  and  imme- 
diately, because  it  was  within  the  control  of  the  Government  at  the 
time  the  Constitution  was  framed.    If,  therefore,  the  Constitution  did 
not  contemplate  the  requirement  of  such  qualifications  for  Delegates  as 
ogents  of  the  Territory  within  its  immediate  purview,  with  much  less 
plausibility  can  it  be  contended  that  it  should  require  them  where  it  is 
only  extended  as  a  part  of  the  statute  law.    The  Constitution  clearly 
puts  it  in  the  power  of  Congress  to  say  at  any  time  and  in  any  way  it 
may  see  proper  what  qualifications  it  will  exact  of  the  agents  whom  as  a 
matter  of  grace  and  discretion  it  i)ermits  to  come  from  the  Territories 
into  its  deliberations,  and  to  sit  among  its  members.    Neither  the  Sen- 
ate nor  the  Executive,  nor  any  other  power  on  earth,  has  any  right  to 
interfere  except  by  permission  in  fixing  the  qualifications  for  admission 
to  the  House ;  and  the  concurrence  and  co-operation  of  the  Senateand 
Executive  in  the  passage  of  any  enactment  on  the  subject  can  go  no 
further  in  giving  it  force  and  validity  than  to  make  it  a  persuasive  rule 
of  action  which  the  House  is  at  liberty  to  follow  or  disregard.    "  Each 
House  shall  be  the  judge  of  the  election,  returns,  and  qualifications  of 
its  own  members."    No  law  that  was  ever  passed  on  this  subject,  which 
is  under  the  exclusive  and  unlimited  control  of  Congress,  by  any  former 
Congress  is  binding  on  any  subsequent  Congress.    Each  Congress  may 
wholly  repudiate  all  such  acts  with  entire  propriety.    It  is  customary  to 
regard  them  as  rules  of  conduct.     This  is  well  illustrated  by  the  doc- 


638  DIGEST    OF    ELECTION    CASES. 

trine  laid  down  by  McCrary  in  his  Law  of  Elections,  section  340,  in  ref- 
erence to  the  laws  made  to  govero  contested  elections  : 

The  Houses  of  Congress,  -when  exercising  their  authority  and  jurisdiction  to  decide 
upon  "the  election,  returns,  and  qualifications"  of  members,  are  not  bound  by  the 
technical  rules  which  govern  proceedings  in  courts  of  justice.  Indeed,  the  statutes 
to  be  found  among  the  acts  of  Congress  regulating  the  mode  of  conducting  an  elec- 
tion contest  in  the  House  of  Kepresentatives  are  directory  only,  and  are  not  and  can- 
not he  made  mandatory  under  the  Constitution.  In  practice  these  statutory  regulations 
are  often  varied,  and  sometimes  wholly  departed  from.  They  are  convenient  as  rules 
of  practice,  and  of  course  will  be  adhered  to  unless  the  House,  in  its  discretion,  shall 
in  a  given  case  determine  that  the  ends  of  justice  require  a  different  course  of  action. 
They  constitute  wholesome  rales,  not  to  be  departed  from  without  cause.  It  is  not 
within  the  constitutional  power  of  Congress,  ly  a  legislative  enactment  or  otherwise,  to  control 
either  House  in  the  exercise  of  its  exclusive  right  to  he  the  judge  of  the  election,  returns,  and 
qualifications  of  its  otcnmemhers. 

The  laws  that  have  been  enacted  on  this  subject  being  therefore  only  directory  and 
not  absolutely  binding,  would  have  been  more  appropriately  passed  as  mere  rules  of 
the  House  of  Kepresentatives,  since  by  their  passage  it  may  be  claimed  that  the  House 
conceded  the  right  of  the  Senate  to  share  with  it  in  this  duty  and  power  conferred  by 
the  Constitution.  It  is  presumed,  however,  that  the  provisions  in  question  were  en- 
acted in  the  form  of  a  statute  rather  than  a  mere  rule  of  the  House,  in  order  to  give 
them  more  general  publicity,  &c. 

It  is  also  important  to  observe  the  wide  distinction  which  Congress 
has  always  made  between  the  powers  and  status  of  a  member  of  Con- 
gress and  a  Delegate  from  a  Territory. 

A  member  of  Congress  is  sent  by  a  State  by  virtue  of  its  irrefragable 
right  to  representation  under  the  Constitution  of  the  United  States. 
This  right  Congress  cannot  abrogate  or  control  or  limit  or  modify  in 
any  way. 

A  Delegate  is  an  agent  of  a  Territory,  sent  under  the  authority  or  per- 
mission of  an  act  of  Congress.  This  right  or  permission  is  subject  to 
the  merest  whim  and  caprice  of  Congress.  It  can  be  utterly  wiped  out 
or  modified  or  changed  just  as  Congress  may  see  proper  at  any  time. 

A  member  of  Congress  must  have  certain  qualifications  under  the 
Constitution. 

A  Delegate  need  have  none  but  what  Congress  sees  fit  to  provide. 

A  member  of  Congress  is  the  representative  and  custodian  of  the  po- 
litical power  and  interests  of  a  sovereign  State,  which  is  Itself  a  factor 
and  part  of  the  Government. 

A  Delegate  has  no  political  power,  but  is  only  a  business  agent  of  the 
Territory,  for  the  purest  business  purposes.  He  has  no  right  to  vote  or 
aid  in  shaping  the  policy  of  the  Government  in  war  or  peace. 

A  member  of  Congress  is  an  officer  named  in  the  Constitution  of  the 
United  States,  and  contemplated  and  provided  by  the  framers  thereof  at 
the  time  of  the  organization  of  the  Government.  He  is  a  constitutional 
officer. 

A  Delegate  is  not  a  constitutional  officer  in  the  remotest  sense.  There 
were  no  Delegates  mentioned  or  thought  of  by  the  framers  of  the  Con- 
stitution. 

A  member  of  Congress  is  chosen  under  section  2,  Article  I  of  the 
Constitution,  which  provides  that — 

The  House  of  Representatives  shall  be  composed  of  members  chosen  every  second 
year  by  the  people  of  the  several  States,  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous  branch  of  the  State  legisla- 
ture. No  person  shall  be  a  Representative  who  shall  not  have  attained  the  age  of 
twenty-five  years  and  been  seven  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  the  State  in  which  he  shall  be  chosen. 

This  specifially  and  definitely  and  indubitably  fixes  how  and  where 
and  by  whom  members  of  Congress  shall  be  chosen  and  what  qualijica- 


CANNON   VS     CAMPBELL.  639 

tions  they  must  imperatively  have.     "  Xo  person  shall  he  a  Bepresentor 
tive,^^  &c.,  without  these  qualifications. 

A  Delegate  is  chosen  under  section  1862  of  the  Revised  Statutes,  which 
provides  that — 

Every  Territory  shall  have  the  right  to  send  a  Delegate  to  the  Honse  of  Represent- 
atives of  the  United  States,  to  serve  during  each  Congress,  who  shall  he  elected  by 
the  voters  of  the  Territory  qualified  to  elect  members  of  the  legislative  assembly 
thereof.  The  person  having  the  greatest  number  of  votes  shall  be  declared  by  the 
governor  duly  elected,  and  a  certificate  shall  be  given  accordingly.  Every  such  Del- 
egate shall  have  a  seat  in  the  House  of  Representatives,  with  the  right  of  debating 
but  not  of  voting. 

This  fully  and  very  clearly  provides  how  Delegates  shall  be  chosen 
and  what  power  they  shall  have,  but  does  not  exact  or  provide  any  qual- 
ifications or  hint  at  any.  This  is  the  same  provision  sul3stantially  which 
has  been  made  for  Delegates  from  1787  down  to  this  time.  The  provis- 
ion in  the  act  of  July  13,  1787,  for  the  government  of  the  Northwest 
Territory,  is  that  the  joint  assembly  of  that  Territory  "shall  have  author- 
ity, by  joint  ballot,  to  elect  a  Delegate  to  Congress,  who  shall  have  a 
seat  in  Congress  with  the  right  of  debating,  but  not  of  voting." 

These  few  marked  points  of  distinction  between  the  two  offices  not  only 
show  that  the  constitutional  qualifications  for  members  do  not  apply  to 
Delegates,  but  that  none  of  the  legislation  which  has  ever  been  enacted 
on  the  subject  seems  to  have  been  founded  on  the  belief  that  they  did. 

CONGRESS  HAS  ADDED  TO  THE  CONSTITUTIONAL  QUALIFICATIONS  OP 
MEMBERS  ;   WHY  NOT   OF  DELEGATES  ? 

But  admitting  for  the  purposes  of  this  discussion,  what  cannot  be  main- 
tained, that  the  same  qualifications  which  entitle  a  member  of  Congress 
to  admission  shall  also  entitle  a  Delegate  to  the  same  right,  and  I  still 
hold  that  Congress  has  the  right  and  power  to  say  that  a  polygamist 
shall  not  be  admitted  as  a  Delegate.  Under  the  high  power  inherent 
in  every  organization  on  earth  to  preserve  its  integrity  and  existence 
Congress  has  the  indubitable  right  to  keep  out  of  its  councils  any  person 
whom  it  believes  to  be  dangerous  and  hostile  to  the  Government. 

During  the  war  almost  the  whole  Congressional  delegation  from  the 
State  of  Kentucky  were  halted  at  the  bar  of  the  House,  and,  on  the  ob- 
jection of  a  member,  were  not  permitted  to  be  sworn  until  it  was  ascer- 
tained whether  they  or  either  of  them  were  guilty  of  disloyal  pra<jtices. 
They  had  each  every  qualification  usually  required  by  the  Constitution; 
they  were  duly  and  regularly  elected  and  returned ;  they  were  sent  by 
a  sovereign  State,  holding  all  her  relations  in  perfect  accord  with  the 
Federal  Government ;  but  the  House  proceeded  to  inquire  into  each  case, 
and  not  until  a  reasonable  investigation  was  had  were  any  of  them  ad- 
mitted. The  committee  which  had  the  matter  in  charge  reported,  and 
the  House  adopted  and  laid  down,  the  following  rule  on  the  subject  of 
all  such  cases : 

Whenever  it  is  shown  by  proof  that  the  claimant  has,  by  act  of  speech,  given  aid  or 
countenance  to  the  rebellion  he  should  not  be  permitted  to  take  the  oath,  and  such 
acts  or  speech  need  not  be  such  as  to  constitute  treason  technically,  biit  must  have 
been  so  overt  and  public,  and  must  have  been  done  or  said  under  such  circumstances 
as  fairly  to  show  that  they  were  actually  designed  to,  and  in  their  nature  tended  to, 
forward  the  cause  of  the  rebellion. 

In  the  case  of  John  Young  Brown,  who  was  among  the  number,  the 
committee  almost  unanimously  reported  against  his  right  to  admission 
on  the  ground  that  he  had  written  an  imprudent  and  disloyal  letter ; 


€40  DIGEST    OF    ELECTION    CASES. 

nothing  more.  He  had  never  committed  an  act  of  treason.  He  was 
never  arrested  or  tried  or  convicted.  He  denied  all  treasonable  intent 
in  the  letter  and  made  every  effort  in  his  power  to  exi)lain  and  extenuate 
his  offense.  But  seven  out  of  the  nine  members  of  the  Committee  on 
Elections  of  the  Fortieth  Congress  reported  that  he  "was  not  entitled 
to  take  the  oath  of  office,  or  to  be  admitted  to  the  House  as  a  Eepresenta- 
tive  from  the  State  of  Kentucky."  This  report  was  adopted  by  the 
House  by  a  vote  of  108  to  43.  The  minority  report  in  that  case  made 
an  argument  against  the  action  of  the  majority  in  almost  the  same  words 
and  on  identically  the  same  grounds  that  the  minority  of  the  Committee 
on  Elections  occupy  in  the  case  under  consideration.  It  was  argued 
that  Mr.  Brown  had  all  the  constitutional  qualifications,  and  that  Con- 
gress had  no  right  to  exact  more  j  that  in  any  event  he  had  never  been 
tried  or  convicted  of  treason,  and  unless  convicted  of  the  crime  even 
treason  was  no  disqualification.  But  Congress  then  laid  down  the  rule 
above  given,  and  never  abrogated  since,  that,  in  addition  to  the  ordi- 
nary constitutional  requirements,  every  man  must  be  well  disposed  and 
loyal  toward  the  Government  before  he  can  be  admitted  to  Congress 
to  aid  in  forming  its  policy  and  controlling  its  destinies. 

The  act  of  July  2, 1862,  providing  what  is  known  as  the  iron-clad  oath, 
added  a  new  and  marked  qualification  to  those  required  of  members  of 
Congress  prior  to  that  time,  and  every  member  who  has  taken  that  oath 
since  has  submitted  to  the  exaction  of  that  additional  qualification .  The 
distinguished  counsel  who  argued  the  case  of  Mr.  Ca;nnon  before  the 
Committee  on  Elections  felt  the  force  of  this  act,  and  the  long-continued 
practice  of  Congress  under  it  and  explained  it  as  a  war  measure.  He 
said : 

The  grounds  upon  which  this  law  was  vindicated,  although  not  stated  with  much 
care  or  precision,  are  nevertheless  clearly  enough  disclosed  by  the  debates.  It  was  en- 
acted as  a  war  measure.  The  iron-clad  oath  was  adopted  as  the  countersign  which 
should,  in  time  of  war,  exclude  domestic  enemies  from  the  civil  administration  of  the 
€k)vernment,  in  the  same  manner  and  for  the  same  reason  that  the  military  counter- 
sign was  employed  to  exclude  those  enemies  from  the  military  lines  of  the  army.  It 
was  enacted  as  a  measure  of  defense  against  an  armed  enemy  in  time  of  war,  and  was 
as  necessary  and  as  justifiable  as  any  other  war  measure  not  specifically  marked  out 
in  the  text  of  the  Constitution. 

If  Congress  could,  almost  without  challenge,  provide  and  add  such  a 
distinct  and  imperative  qualification,  not  for  Delegate  but  for  a  mem- 
ber of  Congress,  in  1862,  why  may  we  not  in  1882  ask  a  reasonable  addi- 
tional qualification  for  a  Delegate  from  a  Territory  who  does  not 
come  within  the  letter  or  spirit  of  the  Constitution  ?  The  act  of  1862 
was  a  bold  and  radical  assertion  of  the  doctrine  of  self-preservation  on 
the  part  of  Congress  to  maintain  its  integrity  and  the  purity  and  loy- 
alty of  its  counsels.  The  resolution  recommended  by  the  majority  of 
the  Committee  on  Elections  only  says  to  the  people  of  Utah,  you  shall 
not  abuse  the  privilege  of  representation  which  we  allowed  you  on  the 
floor  of  Congress,  by  sending  as  your  Delegate  a  person  who  adheres  to 
an  organization  that  is  hostile  to  the  interests  of  free  government,  and 
whose  doctrines  and  practices  are  offensive  to  the  masses  of  the  moral 
people  of  the  great  nation  we  represent. 

CONCLUSION. 

The  following  is  a  summary  of  the  reasons  for  my  concurrence  in  the 
resolutions  of  the  majority  of  the  committee  : 

1.  The  history  of  the  cession  and  organization  of  the  Territory,  which 
belonged  to  the  Federal  Government  at  the  time  of  its  formation,  the 


CANNON    VS.    CAMPBELL.  641 

history  of  the  clause  in  the  Constitutiou  which  relates  to  that  Territory, 
and  the  Constitution  itself,  all  show  clearly  that  it  was  not  contem- 
plated or  intended  that  Delegates  which  might  be  sent  from  said  Terri- 
tory, then  immediately  under  the  Constitution,  should  have  the  same 
qualifications  as  members  of  Congress. 

2.  The  Constitution  does  not  extend  over  Utah,  except  as  a  part  of 
the  statute  law  provided  for  that  Territory  by  Congress,  and  there  is, 
therefore,  more  reason  for  holding  that  the  qualifications  required  for 
members  of  Congress  by  the  Constitutiou  do  not  extend  to  Delegates 
from  that  Territory  than  there  is  in  relation  to  Delegates  from  Territory 
immediately  under  the  Constitution. 

3.  The  Constitution  not  only  does  not  provide  that  Delegates  shall 
have  the  same  qualifications  as  members  of  Congress,  but  no  law,  in 
almost  a  century  of  legislation  on  the  subject,  has  so  provided. 

4.  There  is  no  reason  why  the  qualifications  of  Delegates  should  be 
the  same  as  those  of  members  of  Congress.  Their  status  and  duties 
and  powers  are  widely  different,  and  their  qualifications  should  be 
made  to  conform  to  those  powers  and  duties  w^ich  in  case  of  Delegates 
are  purely  of  a  local  and  business  character. 

5.  The  Territories  can  only  be  held  and  governed  by  Congress  with 
one  single  purpose  in  view,  which  is  to  adapt  and  prepare  them  for 
admission  as  States  of  the  Union.  It  will  hardly  be  contended  that 
Utah  will  ever  be  admitted  as  a  State  while  polygamy  dominates  it,  or 
that  it  is  preparing  it  for  admission  as  a  State  to  hold  out  to  its  people 
the  delusive  doctrine  that  a  polygamist  is  not  disqualified  as  a  member 
of  Congress,  and  therefore  that  polygamy  is  no  bar  to  the  admission  of 
Utah  to  the  Union. 

6.  No  law  fixing  the  qualifications  of  Delegates  passed  by  any  former 
Congress  would  be  binding  on  any  subsequent  Congress.  BACH  House 
shall  be  the  judge  of  the  qualifications  of  its  own  members,  and,  for  a 
much  stronger  reason,  it  should  be  the  exclusive  judge  of  the  qualifica- 
tions of  the  Delegates,  which  are  its  creatures,  and  which  it  admits  as 
matter  of  its  own  discretion. 

7.  Congress  has  held,  from  1862  down  to  this  time,  that  it  has  the 
right  to  prevent  the  admission  of  persons  as  members  who  are  hostile 
to  the  Government  by  excluding  them  on  that  ground,  although  they 
possess  all  the  other  qualifications  required  by  the  Constitution;  with 
much  more  propriety,  and  much  less  stretch  of  power,  Congress  has  the 
right  to  exclude  a  Delegate  who  is  not  well  disposed  toward  the  Gov- 
ernment, and  who  openlj*  defies  its  laws. 


OPINION  OF  ME.  EANNEY,  IN  CANNON  vs.  CAMPBELL,  AS 
EXPRESSED  TO  THE  COMMITTEE  IN  SESSION. 

The  chairman  has  drawn  and  has  printed  his  report,  which  he  pro- 
poses to  make  to  the  House,  and  which  is  before  us. 

I  am  asked,  among  other  members  of  the  committee,  to  express  my 
views  of  this  case  to  go  on  the  records  of  the  committee. 

The  committee  are  instructed  only  to  report  as  to  the  prima  facie  right 
or  the  final  right  of  the  claimants  to  a  seat. 

1.  As  to  the  facts  of  the  case,  I  concur  in  the  findings  stated  in  the 
report,  so  far  as  they  are  material  to  the  issues  of  law  involved  in  the 
case.  The  state  of  the  vote  as  returned  by  the  county  canvassers  to  the 
H.  Mis.  35 41 


642  DIGEST    OF   ELECTION    CASES. 

secretary  of  the  Territory,  and  as  alleged  in  the  notice  of  contest  and 
admitted  in  the  answer  of  the  contestee,  shows  the  vote  to  have  been 
18,508  for  Mr.  Cannon,  1,357  for  Mr.  Campbell,  and  8  for  all  others. 
There  is  no  substantial  ground  on  which  the  claim  that  Mr.  Cannon 
was  an  alien  and  never  naturalized  according  to  law  can  be  satisfac- 
torily maintained.  That  question  was  heard  and  settled  in  the  House 
in  another  contest  long  since,  and  Mr.  Cannon  has  accordingly  held  a 
seat  in  the  House  as  Delegate  from  Utah  for  four  terms  of  Congress, 
and  it  is  time  for  that  part  of  the  controversy  to  be  forever  put  at  rest* 
especially  as  it  is  now  proved  again  conclusively  by  both  record  and 
parol  evidence.  He  has  been  shown  also  to  be  possessed  of  all  the 
qualifications  prescribed  by  the  Constitution  and  laws  of  the  United 
States,  as  well  as  those  of  the  Territory. 

It  appears  that  the  certificate  was  denied  to  him  by  the  governor  on 
an  adjudication  made  by  him  that  Mr.  Cannon  was  an  alien,  not  legally 
naturalized,  and  because  he  w^s  charged  with  and  did  not  deny  that  he 
■was  ^^  living  in  polygamy,  a  violation  of  the  act  of  Congress  of  1862  mak- 
ing it  a  crime,"  and  in  v^w  of  a  bill  which  passed  the  House  of  Eepre- 
sentatives  in  June,  1874  (Cong.  Eec,  p.  5046),  but  did  not  pass  the  Sen- 
ate, providing  that  Delegates  in  Congi'ess  shall  be  twenty-five  years 
old,  seven  years  a  citizen,  and  an  inhabitant  of  such  Territory,  "  and  no 
such  person  who  is  guilty  of  bigamy  or  polygamy  shall  be  eligible  to  a 
seat  as  such  Delegate." 

Accordingly,  the  governor  cast  aside  the  18,568  votes  given  to  Mr, 
Cannon  as  void,  and  gave  the  certificate  to  Mr.  Campbell  on  the  strength 
of  his  1,357  votes. 

While  the  governor  undoubtedly  acted  in  good  faith  and  according  to 
the  law  as  held  by  some  respectable  authorities,  the  better  doctrine  and 
the  one  established  by  the  precedents  of  Congress  is  otherwise,  and  he 
was  in  error,  having  no  authority  of  law  for  what  he  did  in  the  respect 
named.  He  doubtless  followed  Cushing's  Law  and  Practice  of  Legisla- 
tive Assemblies,  pages  52,  66,  67,  and  the  English  rule,  and  some  other 
respectable  authorities  found  in  the  decisions  of  the  courts  in  some  of 
the  States.  It  was  the  same  doctrine  under  which  recently,  on  the 
advice  of  eminent  lawyers,  a  person  having  the  highest  number  of  votes 
for, overseer  of  Harvard  College  was  set  aside  as  ineligible,  because  he 
lived  out  of  the  State,  and  the  office  given  to  the  minority  candidate. 

The  governor  knew  probably  that  a  new  House  did  not  always  at 
least  feel  bound  by  the  precedents  of  former  Houses;  just  as  the  major- 
ity of  the  committee  now  seem  disposed  to  disregard  the  precedent  of 
Maxwell  vs.  Cannon,  in  the  Forty -third  Congress,  and  which  has  been 
yielded  to  in  three  successive  Congresses  since. 

Besides  this,  the  governor  exhibited  his  fairness  and  good  faith  by 
giving  a  certificate,  not  absolute  in  form,  but  one  which  was  perfectly 
consistent  with  the  fact  or  assumption  that  some  other  person,  not 
deemed  to  be  eligible,  had  more  votes  than  Mr.  Cami)bell. 

We  have  before  us  no  evidence  as  to  the  actual  votes  cast  or  of  their 
legality,  save  what  is  found  in  the  copies  of  the  county  returns  made  to 
the  secretary  of  the  Territory  set  up  in  the  notice  of  contest  and  ad- 
mitted to  have  been  made  in  the  answer  of  the  contestee. 

These  returns  having  been  required  to  be  made  by  the  laws  of  Utah 
(Compiled  Stat.,  1876 ;  Stat,  of  1878),  and  being  in  conformity  thereto, 
are  competent  evidence  of  the  facts  therein  contained,  and  not  being 
controverted  by  other  evidence  offered  by  the  contestee,  the  facts  ap- 
pearing by  the  returns  must  be  assumed  as  true  for  the  purposes  of  this 
contest,  under  Revised  Statutes,  section  121. 


CANNON   VS.    CAMPBELL.  643 

I  do  not  regard  the  copy  of  the  record  of  proceedings  before  the  gov- 
ernor as  evidence  only  of  what  those  proceedings  were. 

Under  Kevised  Statutes,  section  1844,  the  secretary  was  required  to 
keep  a  record  of  them,  and  he  is  the  proper  certifying  officer.  The  facta 
embraced  in  the  records  and  papers  certified  are  competent  evidence 
only  so  far  as  they  throw  light  upon  the  action  and  ground  of  action  of 
the  governor. 

The  certified  copies  of  the  returns,  if  required  as  evidence,  made  by 
the  secretary,  in  my  judgment  should  have  been  put  in  proof  before  the 
examiner  who  took  the  evidence,  so  that  the  contestee  might  have  an 
opportunity  then  and  there  to  meet  and  control  it  if  he  desired.  But 
they  stand  on  a  footing  different  from  that  on  which  the  copies  of  the 
executive  record  rest.  It  becomes  of  no  consequence  now,  however,  in- 
asmuch as  the  returns  are  before  the  committee  on  what  may  not  inap- 
propriately be  called  the  pleadings. 

I  do  not  deny  that  the  committee  may,  in  their  discretion,  and  when 
it  works  no  prejudice,  admit  and  use  such  copies  now,  and  concur  in  the 
views  of  the  chairman  on  that  point,  because  tfee  law  regulating  the  pro- 
ceedings in  contested  elections  is  not  absolutely  and  conclusively  bind- 
ing on  the  House,  except  as  a  convenient  mode  of  procedure  which  has 
been  adopted. 

This  is  all  I  need  to  say  upon  the  facts. 

2.  I  agree  in  the  main  with  the  report  of  the  chairman,  wherein  he 
says,  in  substance,  that  it  is  clear  that  the  clause  of  the  Constitution 
relative  to  elections,  returns,  and  qualifications  of  members  applies  and 
extends  to  Delegates,  and  that  substantially  the  same  qualifications 
(unless  it  be  as  to  age)  are  prescribed  for  both  member  and  Delegate. 

I  would  add  to  the  concession  the  assertion  that  the  rule  of  construc- 
tion which  has  been  established  in  regard  to  the  Constitution  relating 
to  members,  to  wit,  that  other  qualifications  cannot  be  added  to  those 
specified,  and  none  taken  away,  applies  for  the  same  reason  to  Dele- 
gates, when  the  qualifications  for  them  are  prescribed  and  specified  by 
statute;  also,  what  is  undoubted  law,  that  judging  of  the  qualifications 
comprehends  only  a  determination  of  the  question  whether  the  member 
or  Delegate  answers  the  qualifications  i)rescribed  as  the  conditions  of 
his  eligibility. 

The  manifest  intent  of  the  Constitution  was  to  fix  certain  things  as 
unalterable  conditions  of  eligibility,  and  leave  all  else  for  the  electors 
to  judge  of  and  determine  fbr  themselves.  Congress  has  shown  the 
same  intention  in  statutes  erecting  Territorial  governments,  and  giving 
a  right  of  qualified  representation.  So  firmly  has  the  House  adhered 
to  this  fundamental  principle  of  a  representative  government  that  the 
uniform  rule  of  Congress  has  been  not  to  entertain  questions  of  alleged 
bad  personal  character  in  judging  of  what  are  called  "  qualifications.'' 
In  exercising  the  right  of  expulsion  even  the  established  rule  has  been 
not  to  expel  for  bad  character  or  even  crimes  committed  before  the  elec- 
tion and  known  to  the  electors  at  the  time.  (McCrary,  sees.  521,  2,  3.) 
A  few  cases  connected  with  the  rebellion,  and  arising  out  of  known  dis- 
loyalty, are  exceptions,  but  they  stand  on  different  grounds.  A  Dele- 
gate's power  was  so  limited  and  circumscribed  that  some  of  the  organic 
acts  did  not  even  prescribe  citizenship  as  a  condition  of  eligibility,  and 
Congress  held  it  to  be  implied,  as  in  the  Michigan  case.  (White's  case, 
Hall  &  Clark,  p.  85.) 

It  follows  that  all  this  committee  has  to  do  on  this  point  is  to  see 
whether  Mr.  Cannon  was  eligible  or  had  the  prescribed  qualifications. 

3.  It  is  sought  to  avoid  the  conclusion  to  which  the  doctrine  of  the 


644  DIGEST  OF  ELECTION  CASES. 

last  point  leads,  on  what  I  consider  most  untenable  and  dangerous 
grounds.  They  contravene  fundamental  principles  of  law,  and  a  prac- 
tice which  has  existed  from  the  beginning  of  the  Government. 

Mr.  Strong,  in  1850,  then  on  Election  Committee  of  the  House,  since 
an  illustrious  judge  upon  the  bench  of  the  CJnited  States  Supreme  Court, 
has  forcibly  illustrated  and  stated  that  all  admissions  of  Delegates  to  a 
seat  are  by  virtue  of  established  laws,  and  not  by  grace  or  within  the 
discretion  of  the  House.  (See  Smith's  case,  Messervy's  case,  Babbitt's 
case,  1  Bartlett,  pp.  109,  117,  16.)  Showing  that  he  has  been  admitted 
only  by  right  from  the  formation  of  the  confederation  down  to  the  Con- 
stitution, and  since  to  this  time. 

It  Is  said  that  a  Delegate  Is  not  named  in  the  Constitution  and  is  not 
the  creature  of  the  same,  while  a  member  is,  and  that  his  admission  to 
a  seat  is  ex  gratia.  The  legal  purport  of  the  opposite  contention,  when 
expressed  in  words,  is:  "  It  is  incompetent  for  Congress  and  the  Exec- 
utive to  impose  on  any  future  House  the  right  of  a  Delegate  to  a  seat"; 
"  they  (the  acts)  were  persuasive  only  to  the  houses  of  future  Con- 
gresses " ;  and,  "  in  short,  it  may  be  said  that  Delegates  sit  in  the  lower 
House  by  its  grace  and  permission,  and  that  it  makes  no  diflerence 
whether  that  permission  is  expressed  in  a  statute  or  in  a  mere  resolution 
of  the  House.  The  House  can  disregard  it  and  refuse  to  be  bound  by  it, 
because  it  affects  (somewhat)  the  organization  and  membership  of  the 
House  alone." 

It  does  not  change  the  legal  purport  in  my  judgment,  to  say  Congress 
had  no  power  to  impose  upon  the  House  a  Delegate  "  tcith  defined  qiial- 
ijications.^^  I  concede  that  powers  could  not  be  conferred  upon  a  Dele- 
gate which  would  infringe  upon  the  constitutional  rights  of  State  rep- 
resentation or  those  of  a  full  member. 

The  gist  of  this  doctrine  is  that  a  statute  which  the  Constitution  au- 
thorizes Congress  to  make  may  be  set  aside  and  made  null  and  void  at 
the  pleasure  of  one  branch  of  the  law-making  power. 

If  the  Constitution  authorizes  Congress  to  enact  the  statutes  relating 
to  the  Territories,  and  give  a  Delegate,  duly  elected  and  returned,  with 
the  requisite  qualifications,  a  right  to  a  seat  and  to  debate,  without  a 
right  to  "vjote,  no  power  under  heaven  can  rightfully  deprive  him  of  these 
rights  and  privileges  except  Congress  itself,  by  some  other  statute 
passed  by  both  Houses. 

The  doctrine  must  lead  to  this:  That  the  statutes  organizing  the  Ter- 
ritories, with  such  powers  and  rights,  are  not  authorized  by  the  Consti- 
tution, and  are  void,  unless  the  House  sees  fit  to  observe  them.  But  this 
clause  of  the  Constitution  has  been  sanctioned  and  sustained  as  au- 
thorizing such  things  too  often  to  require  any  discussion  of  the  sub- 
ject. 

How  the  sitting  of  a  Delegate  can  be  said  to  infringe  upon  any  con- 
stitutional rights  of  a  member  I  fail  to  see.  Nobody  pretends  that  the 
statute  attempts  to  make  him  a  member  in  the  full  sense  of  that  term, 
and  he  is  not  a  creature  of  the  Constitution  in  the  exact  sense  of  that 
term,  but  he  is  a  creature  of  a  statute  which  that  instrument  author- 
izes, and  can  subsist  and  enjoy  his  rights  and  privileges  without  infring- 
ing upon  the  constitutional  rights  of  a  member,  and  that  is  enough  to 
sustain  the  statute  as  valid ;  and,  if  so,  it  is  not  merely  "  persuasive  " 
on  all  future  Houses,  but  absolutely  binding  on  their  consciences,  and 
must  be  obeyed.  It  can  be  disregarded  only  in  the  exercise  of  a  power 
without  the  right,  as  a  sort  of  usurpation  of  authority. 

The  right  of  representation  on  the  part  of  the  Territory  and  of  a 
Delegate  to  his  seat  has  always  been  accorded  as  snch,  and  not  as  a 


CANNON    VS.    CAMPBELL.  645 

prace  or  favor,  save  as  the  grace  and  favor  of  Congress,  aud  not  of  one 
House  alone.  The  doctrine  contended  for  strikes  at  the  very  root  of 
the  right  of  representation  conferred,  and  commits  the  Delegate  to  the 
discretion  and  caprice  of  the  House,  instead  of  the  full  law-making 
power. 

The  organic  law  of  a  Territory  takes  the  place  of  a  constitution  as  the  fundamental 
law  of  the  local  government.  It  is  obligatory  on  and  binds  the  Territorial  anthori- 
ties,  bnt  Congress  is  supreme,  and  for  the  purposes  of  this  department  of  its  govern- 
mental authority  has  all  the  powers  of  the  people  of  the  United  States,  except  such 
as  have  been  expressly  or  by  implication  reserved  in  the  prohibitions  of  the  Consti- 
tution.    *     »     » 

It  may  do  for  the  Territories  what  the  people  under  the  Constitution  of  the  United 
States  may  do  for  the  States.  (Waite,  Ch.  J.,  in  Bank  v.  County  of  Yankton,  101  U. 
S,  133.) 

It  follows  that  Congress,  and  Congress  alone,  can  give  rights  by  stat- 
ute law,  adopting  and  applying,  if  they  please,  the  principles  of  the 
Constitution  so  far  as  they  can  be  made  applicable,  and  imposing  like- 
wise reciprocal  obligations  upon  every  other  branch  of  the  Government 
and  the  people,  so  the  rights  conferred  may  be  guaranteed  and  en- 
forced. 

The  section  1891  of  the  Revised  Statutes  extends  over  Territories  the 
laws  and  Constitution  of  the  United  States,  except  so  far  as  locally  in- 
applicable, and  this  was  designed  to  give  a  representative  form  of  gov- 
ernment and  republican  institutions  to  Territories,  which  were  incipient 
or  prospective  States,  and  give  the  Constitution  eflfect  as  law,  with  re- 
ciprocal rights  and  obligations. 

A  Delegate  becomes  in  one  sense  a  member,  and  yet  not  properly  so 
called.  He  is  enough  so  to  render  applicable  in  spirit  the  law  in  re- 
gard to  contested  elections,  which  in  terms  applies  only  to  members 
the  clause  of  the  Constitution  which  makes  the  House  judges  of  the 
qualifications,  returns,  &c.,  of  the  members,  and  the  other  one  which 
relates  to  the  expulsion  of  members.  (Maxwell  v.  Cannon,  Forty-third 
Congress.) 

The  analogy,  if  justified  at  all,  must  be  carried  and  applied  all 
through,  and  such  has  been  the  uniform  precedent  and  practice  here- 
tofore. The  law  should  not  be  changed  to  meet  the  strain  of  a  special 
desire  in  an  individual  case. 

The  discussion  in  Maxwell  vs.  Cannon  covers  the  whole  subject  mat- 
ter, and  I  adopt  its  doctrine  in  the  main. 

I  feel  very  clear  that  the  organic  act  of  Utah  and  the  Re^ised  Stat- 
utes, including  sections  1860, 1862,  and  1863,  are  constitutional  and  valid 
and  as  such  binding  upon  the  House  as  much  as  on  anybody  else. 

Section  1862  reads:  "Every  Territory  shall  have  the  right  to  send  a 
Delegate  to  the  House  ot  Representatives  of  the  United  States,  to  serve 
during  each  Congress,  who  shall  be  elected  by  the  voters  in  the  Terri- 
tory qualified  to  elect  members  of  the  legislative  assembly  thereof. 
The  person  having  the  greatest  number  of  votes  shall  be  declaretl  by 
the  governor  duly  elected,  and  a  certificate  shall  be  given  accordingly. 
Every  such  Delegate  shall  have  a  seat  in  the  House  of  Representatives, 
with  the  right  of  debating,  but  not  of  voting." 

It  is  to  be  observed  that  the  language  is,  ^'- shall  have  a  seatj^  &c.,  and 
we  may  as  well  reject  everything  else  as  that. 

4.  It  follows,  in  my  judgment,  that  Mr.  Cannon,  being  eligible  and 
duly  elected  and  returned,  makes  out  his  legal  right  to  a  seat  under  the 
statutes,  and  havingfound  thus  much  his  "  final  right"  isdetermined,  sub- 
ject only  to  the  right  which  tlie  House  has  to  expel  him  by  a  two-thirds 
vote. 


646  DIGEST  OF  ELECTION  CASES. 

The  resolution  of  refereuce  is  not  to  determine  which  claimant  has 
the  strongest  case  of  favor  or  grace,  but  which  has  the  "  right,"  L  e., 
the  lef/al  right,  and  we  must  find  this  much  only.  If  no  legal  right 
whatever,  then  we  can  find  that  and  say  so  only  under  this  resolution. 

5.  The  only  objection  urged  is  polygamy. 

My  position  on  that  point  is :  It  is  not  a  disqualification  affecting  the 
legal  right,  but  concerns  only  the  dignity  of  the  House,  and  an  investi- 
gation into  matters  which  concern  that  alone  must  be  instituted  in  the 
House,  and  cannot  be  started  in  a  contest  made  by  a  contestant;  for  the 
contest  embraced  and  committed  to  the  committee  under  chapters,  p.  17 
Kevised  Statutes,  affects  only  the  legal  right.  (Maxwell  vs.  Cannon, 
adopted  by  McCrary,  S.  528.) 

The  reason  for  it  is  apparent  and  sound,  otherwise  any  outsider,  or 
pretender,  or  a  real  contestant,  or  contestee,  may  proceed  to  take  evi- 
dence of  and  spread  upon  the  record  any  amount  of  scandal  or  any 
charge  affecting  the  moral  character — the  private  character — of  any 
member  of  the  House. 

The  House  must  alone  proceed  to  vindicate  its  own  dignity  and  char- 
acter, and  does  not  allow  any  one  outside  of  it  to  start  and  take  evi- 
dence for  them  on  that  subject  unless  by  special  order.  Such  an  inves- 
tigation is  usually  referred  to  a  special  committee. 

The  principle  involved  is  of  more  importance  than  the  seating  or  un- 
seating of  any  one  member. 

I  agree  with  all  that  is  in  the  report  against  polygamy,  and  in  the 
duty  of  Congress  to  obviate  by  law  its  evils,  so  far  as  is  possible,  but 
let  it  be  done  by  law,  and  not  in  violation  of  law. 

If  IVIr.  Cannon  is  eligible  under  existing  law,  and  was  duly  elected 
and  returned,  as  we  find,  we  give  him  Ms  legal  right  to  a  seat  because 
the  law  (sec.  1862)  says  he  shall  have  it. 

We  can  then  exercise  our  right  and  expel  him  under  another  inde- 
pendent provision  of  the  Constitution,  upon  a  proceeding  started  and 
conducted  in  the  usual  and  the  legal  way.  We  have  his  admission, 
put  in  under  protest,  and  may  act  on  that  if  sufficient  and  if  he  does 
not  demand  a  hearing.    It  is  thus : 

I,  George  Q.  Cannon,  contestant,  protesting  that  the  matter  in  this  paper  contained 
is  not  relevant  to  the  issue,  do  admit  that  I  am  a  member  of  the  Church  of  Jesus 
Christ  of  Latter-day  Saints,  commonly  called  Mormons ;  that,  in  accordance  with 
the  tenets  of  said  church,  I  have  taken  plural  wives,  who  now  live  with  me,  and  have 
so  lived  with  me  for  a  number  of  years,  and  borne  me  children.  I  also  admit  that  ia 
my  public  addresses  as  a  teacher  of  my  religion  in  Utah  Territory  I  have  defended 
said  tenet  of  said  church  as  being,  in  my  belief,  a  revelation  from  God. 

GEO  Q.  CANNON. 

6.  If  it  be  true,  however,  that  admission  rests  only  on  tlie  grace  of  the 
House,  and  lies  in  its  discretion,  I  can  see  my  way  clear  to  admit  Mr. 
Campbell  on  the  facts  before  us. 

It  could  be  urged  in  that  event  that  the  law  as  to  contested  election 
does  UDt  apply  in  terms,  and  should  not  be  extended  to  the  present 
case  by  analogy  or  otherwise.  The  contest  as  conducted  outside  can  be 
disregarded  by  the  House,  and  the  governor's  certificate  taken  and 
given  effect  to. 

If  the  right  of  a  Delegate  rests  in  the  discretion  of  the  House  and  not 
on  positive  statute  and  on  binding  obligations  of  law,  I  see  the  strongest 
reason  why  we  should  exercise  that  discretion  and  extend  the  grace 
allowed  to  Mr.  Campbell  and  the  non-Morraon  people  whom  he  evidently 
represents.  The  object  is  to  strike  down  Mormouisra,  and  particularly 
the  institution  of  polygamy,  which  is  said  to  be  practiced  by  2,500  of  the 


CANNON    VS.    CAMPBELL.  647 

about  70,000  Mormons  in  Utah.  Mr.  Cannon  is  said  in  the  report  of  the 
chairman  to  be  personally  unobiectiouable,independent  of  this  polygamy 
objection,  for  he  says:  "We  desire  to  cast  no  imputation  on  the  con- 
testant personally,  because  in  his  deportment  and  conduct  in  all  other 
respects  he  is  certainly  the  equal  of  any  other  person  on  this  floor." 
Mr.  Campbell,  on  the  contrary,  is  the  representative  sent  by  the  non-Mor- 
mon people. 

But  I  cannot  do  this  consistently  with  my  views  as  hereinbefore 
expressed.  It  has  nothing  to  do  with  the  merits  of  this  ca«e  that 
the  law  ought  to  be  otherwise.  We  must  administer  the  statutes  as  they 
are.  Mr.  Cannon  has  been  elected  and  sent  under  the  statutes  as  they 
stand.  He  is  entitled  to  the  same  salary  and  pay  as  full  members 
under  other  express  acts  of  Congress  (Rev.  Stats.,  sees.  35-51),  and  an 
exclusion  results  in  legal  effect  in  depriving  him  of  that  right,  which  is 
clearly  property,  and  cannot  be  taken  away  except  by  due  process  of 
law,  whatever  may  be  said  of  the  office  being  or  not  being  property. 

It  is  to  be  observed,  further,  that  the  House  has  repeatedly  recog- 
nized and  sanctioned  the  law  as  I  claim  it  to  be.  In  1874,  it  passed  a 
bill  making  polygamy  a  disqualification ;  it  did  not  pass  the  Senate. 
Mr.  Cannon,  a  then  known  polygamist,  was  admitted  when  he  first  was 
elected,  after  objection  and  investigation.  He  was  investigated,  and 
the  House  refused  to  expel  him  for  this  cause.  He  has  served  four  terms 
of  Congress  without  further  challenge  until  now.  Dr.  Berneishel,  a 
polygamist,  was  admitted  and  served  ten  years  as  a  Delegate  from  Utah. 
At  this  session  a  bill  has  passed  the  House,  icithout  a  dissenting  votCj 
again  making  polygamy  a  disqualification.  A  bill  has  passed  the  Sen- 
ate of  like  purport,  among  other  things,  and  all  that  remains  is  to  have 
concurrent  action  on  the  same  bill  to  enact  a  bill  which  shall  govern 
action  in  the  future. 

I  do  not  deny  the  right  of  expulsion  at  the  present  term  of  Congress 
if  an  investigation  into  the  alleged  gronnds  for  it  is,duly  ordered  and 
made,  and  it  is  made  to  appear  that  Mr.  Cannon  is  still  violating  and 
putting  at  defiance  the  acts  of  Congress,  and  openly  inciting  others  to 
do  so,  and  persisting  in  such  a  course  of  conduct.  The  House  will 
doubtless  observe  the  clause  of  the  Constitution  insuring  to  every  per- 
son full  religious  freedom,  and  take  cognizance  only  of  illegal  acts  and 
conduct  within  the  rule  of  the  Supreme  Court  as  expounded  in  Reynolds 
m.  The  United  States  (98  U.  S.  Rep.),  while  all  will  probably  agree 
with  what  was  so  aptly  said  long  since  by  Sir  William  Blackstone : 

Polygamy  is  a  great  violation  of  the  public  decency  of  a  well-ordered  state,  and 
can  never  be  endured  under  any  rational  civil  establishment,  whatever  specious  rea- 
sons may  be  given  for  it. 

It  ought,  however,  to  be  further  observed  that  Congress,  in  passing 
the  organic  act  of  Utah,  did  not  provide  anything  against  the  institu- 
tion and  practice  of  polygamy,  although  it  then  existed,  and  did  not  do 
so  subsequently  until  1862,  when  even  then  it  only  made  it  a  crime  for 
a  man  having  one  wife  living  to  marry  another,  and  did  not  include  the 
continuance  of  polygamous  relation  under  marriages  already  contracted 
<Rev.  Stat.,  sec.  5352.)  As  all  polygamous  marriages  before  the  act  of 
1862  were  in  the  nature  of  civil  contracts,  and  not  prohibited  by  any 
laws  in  force  in  Utah  (unless  it  is  the  moral  law),  it  has  never  been  de- 
cided as  yet  that  they  were  invalid,  or  that  they  could  be  made  so,  or  a 
crime,  by  any  retroactive  or  ex  post  facto  statute. 

Unless  Mr.  Cannon  is  shown  to  have  taken  one  of  his  four  wives 
since  the  act  of  1862,  he  has  therefore  committed  no  crime  under  the 
acts  of  Utah  or  the   laws  of  the  United   States,  which  alone  apply 


648  DIGEST    OF    ELECTION    CASES. 

thereto  as  statute  law.  If  continuing  to  live  with  wives  which  he  had 
married  before  that  time  is  not  a  crime  under  existing  laws,  he  is  not 
shown  to  have  been  guilty  of  any  criminal  oifense,  however  much  he  has 
offended  against  the  laws  of  morality  and  the  fundamental  rules  of  the 
civilized  society  of  this  country.  The  language  of  the  written  admission 
of  Mr.  Cannon  is  not  clear,  and,  without  further  proof,  I  have  no  right 
to  assume  that  he  has  married  any  one  of  his  wives  since  the  passage 
of  the  act  of  1862.  Hence  the  importance  of  an  investigation  to  get 
proof  of  this  fact,  if  deemed  of  legal  weight.  All  else  is  a  question  of 
morality. 

Will  the  House,  independent  of  the  Senate,  attempt  to  virtually  outlaw 
the  whole  Mormon  population  of  Utah,  and  say  they  shall  have  no  repre- 
sentation of  their  own  choice,  in  violation  of  the  fundamental  policy  of 
a  republican  form  of  government  and  of  existing  acts  of  Congress,  or 
join  with  the  Senate  in  passing  all  salutary  laws  which  may  operate  in 
the  future  to  regulate  their  action  and  correct,  as  far  as  possible,  the 
evils  of  the  system  f  There  are  said  to  be  only  about  2,500  polygamists 
out  of  a  Mormon  population  of  75,000  or  more.  It  is  a  serious  ques- 
tion of  policy,  as  well  as  of  alleged  right.  For  one  I  prefer  to  ob- 
serve good  faith  ourselves  and  execute  the  statutes  as  they  are,  and 
then  correct  them  so  they  may  be  more  stringent  and  salutary  for  the 
future,  regretting  only  that  it  has  not  been  done  before. 

No  temporary  passion  should  rule  the  hour,  and,  however  high  it  may 
rise,  we  should  not  allow  its  wave  to  sweep  us  from  safe  legal  moorings, 
or  betray  us,  as  legislators,  into  what  is  little  else  than  a  declaration  of 
war  against  a  sect  of  so-called  religiouists,  unless  through  the  medium 
of  laws. 

Resolution  offered  in  committee  by  Mr.  Banney, 

Resolved^  That  George  Q.  Cannon  was  duly  elected  and  returned  as 
a  Delegate  for  the  Territory  of  Utah  to  a  seat  in  the  Forty-seventh 
Congress. 

Resolved^  That  the  charges  against  the  private  and  moral  character 
of  George  Q.  Cannon,  so  far  as  proved  in  the  record,  do  not  involve  or 
embrace  any  legal  disqualifications  for  the  oflQce  of  Delegate  under  ex- 
isting statutes  and  laws,  are  not  referred  to  the  committee  under  the 
resolution  of  the  House,  and  that  the  offense  thus  presented  be  brought 
to  the  attention  of  the  House  for  their  action. 


VIEWS  OF  ME.  G.  ATHEETON. 

On  the  question  whether  the  practice  of  polygamy  and  a  belief  in  the  same  is 
a  "  disqualification''^  on  the  part  of  a  Delegate  to  a  seat  in  the  House  of 
Representatives. 

I  do  not  care  to  discuss  the  questions  involved  in  this  case  on  which 
the  committee  substantially  agree.  They  have  been  fully  considered 
and  ably  argued,  and  the  committee  (except  a  single  member)  unite  in 
the  opinion  that  Cannon  was  legally  elected,  by  a  large  majority,  a  Del- 
egate from  the  Territory  of  Utah  to  the  Forty-seventh  Congress ;  that 
be  was  and  is  a  naturalized  citizen  of  the  United  States,  and  entitled  to 
his  seat  as  a  Delegate  unless  disqualified  by  the  fact  that  he  practices 
and  teaches  the  doctrines  of  i)olygamy. 


CANNON    VS.    CAMPBELL.  649 

QUESTION   STATED   BY  THE  MAJORITY. 

As  improperly  stated  by  the  majority,  the  question  is,  whether  the 
House  will  admit  to  a  seat  as  a  Delegate  "  one  who  practices  and  teaches 
the  doctrines  of  a  plurality  of  wives  in  open  violation  of  the  statutes  of 
the  United  States  and  contrary  to  the  judgment  of  the  civilized  world.^ 

AN  UNWARRANTED  ASSUMPTION. 

In  order  to  construct  an  argument  it  is  best  to  examine  the  truth  of 
the  premises. 

It  is  an  assumption  wholly  unwarranted  by  the  evidence  in  this  case 
that  Cannon  has  committed  any  crime  against  the  statutes  of  the  United 
States.  It  is  said  he  admits  he  is  a  member  of  the  Mormon  Church, 
and  has  taken  plural  wives  who  now  live  with  him,  aud  have  for  a  num- 
ber of  years,  and  borne  him  children ;  that  he  believes  in  the  Mormon 
religion,  and  defends  its  tenets  as  a  revelation  from  God. 

Admitting  all  this  to  be  true,  it  shows  the  commission  of  no  statutory 
oftense. 

No  act  of  Congress  prior  to  the  act  of  July  1,  1862,  made  bigamy  a 
crime  in  the  Territories.  Taking  plural  wives  was  not  a  crime  at  com- 
mon law. 

This  act  punished  the  contracting  of  a  second  marriage,  and  did  not 
and  does  not  prohibit  or  punish  cohabitation  with  plural  wives  at  all. 
There  is  no  proof  and  no  admission  in  this  case  that  Cannon  contracted 
any  marriage  after  the  passage  of  the  act  of  1862.  The  presumption  is 
always  in  favor  of  innocence,  and  every  element  of  crime  is  to  be 
proved.  Therefore  the  arguments  start  oat  on  a  premise  wholly  desti- 
tute of  proof. 

A  CONSTITUTIONAL   RIGHT. 

As  abhorrent  as  the  doctrine  may  be  to  others.  Cannon  as  an  Ameri- 
can citizen  has  the  right  to  believe  and  teach  the  doctrine  of  a  plurality 
of  wives  as  a  revelation  if  he  chooses  to,  and  he  is  not  to  be  punished 
for  it.  Whether  he  is  guilty  of  doctrines  and  practices  "  contrary  to  the 
judgment  of  the  civilized  world"  is  not  quite  the  question  we  are  trying. 
We  are  for  the  time  being  judges  in  this  case — not  politicians  or  parti- 
sans. We  are  charged  to  investigate  and  report  whether  Cannon,  by 
the  law  of  the  land,  is  entitled  to  a  seat  in  this  House.  To  properly  de- 
termine this  question  we  must  resort  to  the  testimony  in  the  case,  the 
law  as  drawn  from  reason  and  precedent,  and  turn  a  deaf  ear  to  igno- 
rant clamor. 

FORMER  PRACTICE  OF  THE  HOUSE. 

This  House  has  heretofore  admitted  to  a  seat  in  its  halls,  when  it  had 
both  large  Republican  and  large  Democratic  majorities,  this  same  man. 
The  same  Delegate  from  the  same  Territory  under  a  similar  state  of  facts,, 
and  the  House  has  not  suffered  from  the  contact. 

THE  REAL   QUESTION  AT  ISSUE  STATED. 

Such  being  the  deliberate  practice  of  the  House,  upon  full  considera- 
tion, the  question  recurs : 

Should  a  Delegate  duly  elected,  and  ha^^ng  the  qualifications  of  Rep- 
resentatives of  the  people,  be  denied  admission  to  a  seat  therein  be- 


650  DIGEST    OF    ELECTION    CASES. 

cause  his  teachings  and  practices  involve  what  we  deem  moral  turpi- 
tude ?  In  other  words,  Can  the  seat  of  a  Delegate,  who  has  not  com- 
mitted any  statutory  crime,  be  withheld  from  him  on  a  charge  involving 
moral  turpitude  that  in  no  way  affects  his  qualifications  as  a  member 
of  this  House  ? 

It  is  admitted  by  fourteen  members  of  the  Committee  on  Elections, 
and  perhaps  all,  that  if  Cannon  was  a  Representative  elect  from  a  Con- 
gressional district  in  a  sovereign  State,  or  "  a  constitutional  member," 
you  could  not  deny  him  admission  if  he  had  been  duly  elected,  duly  re- 
turned, and  had  the  qualifications  as  to  age,  citizenship,  and  inhabit- 
ancy required  by  the  Constitution,  upon  any  charge  of  moral  disqualifi- 
cation. And  that  if  he  was  guilty  of  practices  or  even  crimes  not 
involving  his  constitutional  qualifications,  the  House  could  only  free 
itself  from  his  presence  by  the  exercise  of  the  power  of  expulsion. 

OBJECTION  STATED. 

But  it  is  said  a  Delegate  is  not  a  constitutional  member;  his  election 
is  not  provided  for  by  the  fundamental  law,  and  his  powers  and  duties  are 
limited,  and,  being  simply  a  creature  of  the  statute,  the  Delegate  sits  by 
the  grace  and  permission  of  the  lower  House,  and  that  the  House  may  at 
any  time  disregard  the  statute  and  deny  the  Delegate  admission  for 
any  reason  satisfactory  to  itself,  whether  that  reason  involves  such 
qualifications  as  are  prescribed  by  the  Constitution  or  others  of  a  dif- 
ferent nature. 

Does  the  result  follow  as  claimed  ?  It  is  true  the  election  of  Delegates 
was  not  provided  for  in  the  Constitution.  But  the  First  Congress  of 
the  United  States  enacted  a  law  for  the  admission  of  a  Delegate,  and  he 
was  admitted  thereunder,  and  Delegates  have  had  seats  in  the  House 
ever  since. 

CAN  THE  HOUSE  ANNUL  AN  ACT   OF   CONGRESS? 

That  statute  and  like  statutes  were  enacted  not  by  the  House  alone, 
but  by  the  Senate  and  House  of  Representatives,  with  the  sanction  of 
the  President  of  the  United  States — by  the  law-making  power  of  the 
Government — and  have  been  in  full  force  and  effect  ever  since. 

They  confer  on  a  Territory  the  right  to  have  an  agent  and  represent- 
ative on  the  floor  of  the  House  to  speak  for  his  constituency,  to  advo- 
cate measures  for  their  relief  and  benefit,  and  to  oppose  all  measures  he 
may  deem  against  their  interests.  They  give  to  the  Delegate  himself  a 
right  to  the  emoluments  and  dignity  of  the  ofl&ce,  and,  being  the  law 
of  the  land,  these  statutes  bind  the  House  as  much  as  they  do  the  hum- 
blest citizen.  They  are  subject  to  repeal,  but  while  in  force  may  not  be 
disobeyed  ;  and  a  Delegate,  under  the  statute,  cannot  be  arbitrarily  de- 
prived of  his  seat  while  the  statute  is  in  force  and  unrepealed,  any 
more  than  a  Representative  can  who  holds  his  place  under  the  Consti- 
tution. 

It  is  an  absolute  non  sequitur  to  say  a  Delegate  may  be  denied  admis- 
sion because  he  is  the  creature  of  statute,  while  a  Representative  may 
not  who  claims  under  the  Constitution.  The  statutory  right  of  the  one 
is  entitled  to  the  same  consideration  by  the  House  as  the  constitutional 
right  of  the  other,  so  long  as  the  statute  remains  in  force. 

QUALIFICATIONS  OF  DELEGATES. 

Now,  what  qualifications  do  the  statutes  require  of  Delegates? 


CANNON   VS     CAMPBELL  651 

Wheu  the  CoDStitution  was  adopted  it  stipulated  what  should  be  the 
qualitications  of  the  members  of  the  House.  But  oue  kiud  of  members 
were  therein  contemplated.  These  were  the  Representatives  from  States, 
or  of  districts  within  the  States.  At  the  first  Congress  another  kind  of 
member  was  created  by  statute — one  of  limited  powers,  but  a  member, 
nevertheless.  He  had  a  seat  on  the  same  floor,  received  the  same  com- 
pensation, could  propose  and  advocate,  and,  in  fact,  do  anything  a  Rep- 
resentative could  do,  except  to  vote  and  to  move  to  reconsider.  Thence- 
forth the  membership  of  the  House  consisted  of  two  classes  :  Representa- 
tives and  Delegates.  When  this  new  species  of  membership  was 
authorized,  they  came  in  subject  to  that  clause  in  the  Constitution  that 
the  House  should  be  the  judge  of  the  elections,  returns,  and  qualifi- 
cations of  its  members,  and  also  subject  to  the  power  of  the  House  by  a 
two-tbirds  vote  to  expel  a  member;  and  their  qualifications  as  to  age, 
residence,  and  inhabitancy  was  that  required  of  members.  They  were 
members  of  the  House  with  limited  powersj  and  must  have  like  qualifi- 
cations. 

If  that  result  does  not  follow  from  the  statute  creating  the  office  of 
Delegate  and  making  a  further  membership  in  the  House,  it  is  to  be  ob- 
served that  Congress  has  extended  the  Constitution  and  statutes  of  the 
United  States  over  the  Territories,  except  where  locally  inapplicable. 
The  Constitution  becomes  thereby  a  part  of  the  organic  statutory  law 
of  the  Territory,  and  extends  the  qualifications  of  the  Representative  to 
the  Delegate  to  be  elected. 

HOUSE  HAS  ONLY  POWER  OVER  MEMBERS. 

What  power  has  the  House  to  judge  of  the  election,  returns,  or  quali- 
fications of  a  Delegate,  if  the  latter  is  not  a  member  of  the  House  f 

What  power  have  we  to  expel  a  Delegate  for  the  grossest  misconduct 
or  crime  f 

You  may  look  through  the  Constitution,  statutes,  rules  of  the  House 
and  of  the  committee  in  vain  to  find  a  single  provision  to  examine  or 
judge  of  the  elections,  returns,  or  qualifications  of  Delegates  unless  a 
Delegate  is  a  member. 

Neither  will  you  find  any  power  of  expulsion  for  any  cause  unless  a 
Delegate  is  a  member. 

Do  you  say  the  House  has  inherent  power  to  protect  itself,  which  in- 
cludes the  power  of  admission  and  expulsion  ?  I  answer,  only  as  to  its 
members,  and  if  you  deny  the  membership  of  Delegates,  you  abrogate 
all  power  to  judge  of  their  elections,  returns,  or  qualifications,  or  to 
expel  for  misconduct. 

The  construction  that  the  members  of  the  House  are  composed  of  the 
Representatives  and  Delegates  elected  thereto  will  not  give  the  Dele- 
gate a  right  to  vote,  as  has  been  erroneously  assumed.  The  statute 
provides  directly  that  they  shall  not  vote,  and  as  to  that  the  Constitu- 
tion made  the  organic  statutory  laws  of  the  Territories  is  not  applicable. 

If  a  Delegate  is  not  a  member  in  the  sense  I  have  contended  there  is 
no  act  of  Congress  authorizing  a  contest  to  be  had  touching  his  seat. 

THE  SEATS  OF  MEMBERS  MAY  BE  CONTESTED. 

The  practice  act  provides  what  a  contestant  must  do  if  he  desires  "  to- 
contest  the  election  of  any  member.^''  See  Revised  Statutes,  section  105 
et  seq.  Its  provisions  relate  simply  to  memhers.  A  Delegate  is  not  men- 
tioned in 

Rule  11th  of  the  House  provides  that 


652  DIGEST    OF    ELECTION    CASES. 

All  proposed  legislation  shall  be  referred  to  tlie  committea  named  iu  the  preceding 
rule,  as  follows : 

Subjects  relating: 

Clause  1.  To  the  election  of  members:  to  the  Committee  on  Elections. 

Clause  47.  The  following-named  committees  shall  have  leave  to  report  at  any  time 
on  the  matters  herein  stated,  to  wit : 

The  Committee  on  Elections,  on  the  right  of  a  memler  to  a  seat. 

The  Committee  on  Elections  have  no  power  to  investigate  the  case  of 
Cannon  vs.  Campbell,  the  House  no  authority  to  adjudicate  thereon,  un- 
less they  claim  to  be  members-elect  of  the  House. 

No  rule  of  the  House  ever  sent  this  case  to  a  coolmittee  unless  these 
parties  claim  to  be  elected  members. 

A  REPRESENTATIVE  IS  A  MEMBER,  BUT  A  MEMBER  MAY  NOT  BE  A 

REPRESENTATIVE. 

The  difficulty  results  froip  a  misconception  of  terms,  in  failing  to  dis- 
tinguish between  a  Representative  in  the  House  and  a  member. 

A  Representative  is  a  member,  but  a  member  may  not  be  a  Repre- 
sentative in  the  technical  sense  of  the  term ;  a  Delegate  is  also  a  member. 

A  Representative  is  a  member  with  full  powers.  A  Delegate  is  a 
member  with  limited  powers.  Both  occupy  seats,  confer,  consider,  ad- 
vocate, and  propose,  and  form  the  membership  of  the  House  under  the 
Constitution  and  statutes  of  the  land.  Their  seats  are  contested  by  the 
same  statutes  aud  under  the  same  rules  of  procedure.  Their  elections, 
returns,  and  qualifications  are  judged  by  the  same  standard,  and  they 
are  excluded  from  the  House  for  cause  alike  by  a  two-thirds  vote  of  the 
voting  membership. 

This  question,  as  before  observed,  is  not  an  open  one. 

MAXWELL  vs.   CANNON  IN  FORTY-THIRD  CONGRESS. 

The  exact  question  was  determined  in  the  Forty-third  Congress  in 
the  case  of  Maxwell  vs.  Cannon  (Smith's  Cout.  El.  Cases,  p.  182). 

Gerry  W.  Hazleton,  on  behalf  of  the  Committee  on  Elections,  sub- 
mitted the  principal  report.  As  a  precedent  it  [that  case]  is  unreversed, 
and  until  now  unquestioned,  and  the  reasoning  on  which  it  stands  is 
unassailable. 

That  report  takes  up  the  question  of  polygamy,  and  discusses  the 
proposition  whether  the  fact  that  George  Q.  Cannon  at  and  before  the 
election  in  question  was  openly  living  and  cohabiting  with  four  women 
as  his  wives  at  Salt  Lake  City,  and  was  still  cohabiting  with  them,  dis- 
qualified him  to  represent  that  Territory  as  a  Delegate. 

The  question  of  the  jurisdiction  of  the  committee  is  first  raised,  and 
the  committee  determine  that  their  jurisdiction  is  limited  to  the  elec- 
tions, returns,  and  qualifications  of  its  members;  that  the  qualifica- 
tions alluded  to  are  age,  citizenship,  and  residence,  and  that  the  uni- 
form practice  of  the  House  limited  the  inquiry  as  to  qualifications  to 
those  pointed  out  in  the  Constitution  itself. 

The  matter  being  conceded  (so  says  Mr.  Hazleton's  report)  that  Can- 
non had  these  qualifications,  the  query  arose  : 

"  Does  the  same  rule  apply  in  considering  the  case  of  a  Delegate  as 
a  member  of  the  House  ? " 

It  was  shown  that  the  act  organizing  the  Territory  of  Utah  extended 
the  law's  and  Constitution  of  tbe  United  States  over  that  Territory  so 
far  as  the  same  were  applicable ;  and  it  was  suggested  that  whether 
the  Constitution  was  technically  extended  as  such  ov^er  the  Territory  or 


CANNON    VS.    CAMPiiELL.  653 

uot,  that  certainly  Cou^ress  could  make  the  Constitution  a  part  of  the 
statutory  law  of  the  Territory  as  much  as  any  other  portion  of  the  organic 
law  thereof;  that,  having  done  so,  the  committee  must  fairly  and  justly 
assume  that  by  making  the  Constitution  a  part  of  the  law  of  the  Terri- 
tory Congress  intended  to  indicate  that  the  qualifications  of  the  Delegate 
to  be  elected  should  be  similar  to  those  of  a  member.  The  House,  how- 
ever, went  further  than  this  report,  which  simply  found  that  Cannon 
had  been  duly  elected  and  returned,  and  adopted  a  resolution,  offered 
by  H.  H.  Harrison,  declaring  Cannon  to  have  been  duly  elected  and 
returned,  and  entitled  to  a  seat  from  the  Territory  of  Utah. 

THE  EFFECT   OF  CRIME  IN  CONTESTED-ELECTION  CASES. 

The  same  rule  as  to  the  limits  of  the  jurisdiction  of  the  committee 
and  as  to  the  result  of  crime  imputed  to  a  contestee,  is  laid  down  and 
insisted  on  in  a  report  made  by  Speaker  Keifer  in  the  case  of  Donnelly 
vs.  Washburn  in  the  Forty-sixth  Congress.  In  that  case  Washburn 
was  charged  with  bribery,  and  it  was  insisted  that  the  charge  was  suc- 
cessfully proved  against  him,  and  as  a  result  of  it  that  the  bribed  votes 
were  not  merely  to  be  deducted,  but  that  the  crime  being  fastened  on 
him  worked  a  disqualification  to  the  office  that  he  had  sought  through 
bribery.  But  the  learned  Speaker  insisted  it  only  excluded  the  bribed 
votes,  and  that,  even  if  guilty  of  bribery,  that  was  not  a  constitutional 
disqualification,  and  that  bribery  "  does  not  vitiate  when  it  does  not  im- 
pregnate." 

A  WELLCONSIDBEED   PRECEDENT    SHOULD   NOT  BE    LIGHTLY    OVER- 
TURNED. 

If  the  settled  law  upon  this  subject  is  to  be  overturned,  it  ought  to  be 
upon  a  very  clear  case  and  for  reasons  the  most  cogent. 

The  rule  has  heretofore  been  that  when  a  person  claiming  to  be  a 
member  elect,  whether  Eepresentative  or  Delegate,  knocks  at  the  door 
of  the  House  for  admission,  the  questions  asked  are: 

1.  Was  he  duly  elected  ? 

2.  Was  he  duly  returned  ? 

3.  Has  he  the  qualifications  of  age,  citizenship,  and  inhabitancy  re- 
quired alike  of  the  Representative  by  the  Constitution  or  the  Delegate 
by  Constitution  and  statute  ?  If  the  questions  are  answered  in  the 
affirmative,  he  is  awarded  his  seat,  subject  to  the  expulsion  of  the  House 
for  misconduct  or  crime  that  would  make  him  unworthy  of  the  fellow- 
ship of  the  House. 

RULE  AS  TO  QUALIFICATIONS  OF  REPRESENTATIVE  AND  DELEGATE 
»  SHOULD  BE  THE  SAME. 

It  is  said  the  provisions  of  the  Constitution  are  inapplicable  to  the 
qualifications  of  a  Delegate.  Will  some  one  tell  us  why  !  Does  it  not 
furnish  a  good  rule  as  to  age,  residence,  and  citizenshij)  ?  Can  any  per- 
son give  a  good  reason  why  a  higher  standard  of  morality  should  be 
required  for  a  Delegate,  who  can  only  speak  and  not  vote,  than  for  a 
member,  who  can  both  speak  and  vote  ? 

Besides,  a  departure  from  the  Constitutional  rule  lands  us  in  a  wide 
ocean,  without  chart  or  compass,  so  that  a  Delegate  shall  hold  his  place, 
not  by  a  charter  of  right  which  each  member  is  bound  in  conscience  to 


654  DIGEST  OF  ELECTION  CASES. 

obey,  but  his  admission  or  rejection  depends  upon  the  undefined  and 
ever-changing  moral  test  of  the  majority. 

To  day  polygamy  5  to-morrow  fornication  or  other  breach  of  marital 
duty  may  form  it ;  next  week  the  gambler  may  be  interdicted,  and  a 
month  later  the  drunkard ;  infidelity  may  become  the  test,  or  some  re- 
ligion or  tenet  so  different  from  our  own  that  we  feel  it  a  crime  against 
the  civilization  of  the  nineteenth  century.  Either  or  all  may  stand 
like  flaming  swords  to  protect  the  portals  of  the  House  against  the 
offending  Delegate  who  seeks  admission. 

There  is  no  despotism  so  intolerable  as  the  despotism  of  an  unbridled 
majority,  unrestrained  by  law. 

RIGHT   OF  HOUSE  TO  REJECT  AN  ELECTED  DELEGATE. 

Why  should  the  House  refuse  to  receive  a  member  or  a  Delegate 
having  the  qualifications  prescribed  by  both  Houses  of  Congress  f 
Utah  was  admitted  as  a  Territory  by  th^  concurrent  action  of  the  law- 
making power  of  the  nation.  She  was  given  qualified  representation 
on  the  floor  of  the  House  by  like  action  of  Congress.  Has  this  House 
any  legal  right  to  annul  the  legislation  giving  to  Utah  an  agent  on  the 
floor  of  the  House  any  more  than  it  has  to  annul  the  legislation  admit- 
ting the  Territory  ?  And  if  not,  has  the  House  any  legal  right  to  keep 
out  any  agent  the  Territory  may  elect  and  return  that  has  the  qualifi- 
cations of  the  Constitution  made  by  Congress  a  part  of  the  organic  law 
of  that  Territory  ? 

CERTAIN  CONSTITUTIONAL  PROVISIONS  CONSIDERED. 

And  in  this  connection  I  am  not  here  denying  the  right  of  the  House 
to  protect  itself  against  men  who  from  moral  turpitude  are  unworthy 
of  a  seat  in  its  halls.  And  that  brings  me  to  consider  for  a  moment 
the  proper  construction  to  be  given  to  the  two  clauses  of  the  Constitu- 
tion— one  providing  that  the  House  shall  be  the  judge  of  the  election 
returns  and  qualifications  of  members,  and  the  other  clause  enabling 
the  House  to  expel  a  member  by  a  two-thirds  vote. 

When  a  member  presents  his  credentials  and  claims  to  be  a  member 
elect,  the  House  exercises  the  exclusive  jurisdiction  granted  by  the  first 
clause,  and  inquires  is  he  duly  elected?  which  is  determined  by  ascer- 
taining whether  he  secured  a  majority  or  plurality  of  votes.  Is  he  duly 
returned  ?  This  is  answered  by  examining  the  regularity  of  his  creden- 
tials; and  has  he  the  constitutional  qualifications?  which  is  answered 
by  inquiring,  was  he  a  citizen,  was  his  age  as  required  by  the  Constitu- 
tion, and  did  he  reside  in  the  Territory  he  proposes  to  represent?  After 
making  these  inquiries  and  finding  all  the  facts  in  his  favor  and  accord- 
ing to  the  constitutional  requirements,  the  House  cannot  lawfully  go  on 
to  inquire  into  his  religion,  morals,  or  even  his  crimfes.  He  first  takes  his 
seat,  and  then  he  becomes  subject  to  the  expulsion  of  the  House  for  crime, 
even  a  crime  as  undefined  as  one  against  the  civilization  of  the  nine- 
teenth century.  But  another  rule  here  obtains.  When  you  charge  a 
man  with  such  tenets,  principles,  practices,  and  crimes  as  you  assume 
makes  him  unworthy  of  a  place  in  the  membership  of  the  House,  you 
must  convince  twd  thirds  of  the  voting  membership  of  the  existence  of 
an  adequate  reason  for  expulsion.  This  forms  a  protection  against  the 
unbridled  power  of  a  mere  majority.  If  a  crime  of  dark  turpitude  is 
clearly  proved  against  a  member,  two  thirds  can  easily  be  found  who 
will  unite  to  drive  him  from  the  seat  he  has  dishonored,  but  not  so  of  a 
doubtful  case  or  accusation. 


CANNON    VS.    CAMPBELL.  655 

This  construction  gives  the  proper  effect  to  the  two  clauses  of  the 
Constitution,  and  are  applicable  alike  to  Representatives  and  Delegates. 
I  conclude,  therefore,  that  Cannon  is  entitled  to  a  seat  on  the  floor  of 
the  House;  and  it  is  a  question  for  the  determination  of  the  House,  and 
not  of  this  committee,  whether  he  should  hereafter  be  expelled  for  the 
practice  of  polygamy  or  other  alleged  crime  or  misconduct  on  his  part. 
That  question  is  not  now  for  this  committee.  It  need  not  be  determined 
till  reached. 

The  House  has  the  power  and  technical  right,  at  least,  to  expel  Cannon 
for  the  practice  of  bigamy  by  a  two-thirds  vote.  It  can  do  so  without 
the  violent  and  revolutionary  assumption  of  power  that  is  now  neces- 
sary to  deny  him  the  seat,  and  without  furnishing  a  precedent  that  will 
invite  every  disappointed  contestant  to  attack  the'  moral  character  of 
his  adversary  and  scatter  slander  on  .very  wind  through  the  medium 
and  machinery  of  a  contest,  real  or  pretended.  Look  well  to  the  conse- 
quences before  such  a  practice  is  invited. 


MINORITY  REPORT. 

In  the  matter  of  George  Q.  Cannon,  contestant,  vs.  Allen  G.  Camp- 
bell, contestee,  from  the  Territory  of  Utah,  and  referred  to  the  Commit- 
tee on  Elections  of  the  Forty-seventh  Congress,  the  said  committee 
have  had  the  same  under  consideration,  and  the  undersigned,  a  part  of 
said  committee,  make  the  following  report,  as  expressing  their  views 
upon  the  matter  submitted  : 

The  Ke vised  Statutes  of  the  United  States  contain  the  following  pro- 
vision : 

Sec.  1862.  Every  Territory  shall  have  a  right  to  send  a  Delegate  to  the  House  of 
Representatives  of  the  United  States,  to  serve  during  each  Congress,  who  shall  be 
elected  by  the  voters  in  the  Territor y  qualified  to  elect  members  of  the  legislative 
assembly  thereof.  The  person  having  the  greatest  number  of  votes  shall  be  declared 
by  the  governor  duly  elected,  and  a  certificate  shall  be  given  accordingly.  Every 
Buch  Delegate  shall  have  a  seat  in  the  House  of  Representatives,  with  the  right  of 
debating,  but  not  of  voting. 

Section  1844  of  the  Kevised  Statutes  expressly  requires  "  a  record  ta 
be  made"  of  all  proceedings  of  the  executive  as  follows: 

The  secretary  shall  record  and  preserve  all  laws  and  proceedings  of  the  legislative 
assembly,  and  all  the  acta  and  proceedings  of  the  governor  in  the  executive  depart- 
ment. 

The  Territorial  law  of  Utah  provides  as  follows : 

Sec.  21.  The  clerk  of  the  county  court  shall  also,  as  soon  as  possible  after  the  result 
of  the  election  has  been  so  determined,  make  out  a  general  abstract  thereof  in  tripli- 
cate, and  certify  to  the  correctness  thereof,  one  of  which  he  shall  post  m\}  in  his  office, 
and  forward  to  the  secretary  of  the  Territory  a  certified  copy  of  the  names  of  the  per- 
sons voted  for  and  the  numljer  of  votes  each  has  received  for  Territorial  offices. 

Sec.  22.  As  soon  as  all  the  returns  are  received  by  the  secretary  of  the  Territory  he 
shall,  in  the  presence  of  the  governor,  unseal  and  canvass  the  same,  and  make  an  ab- 
stract thereof,  and  the  secretary  shall  within  ten  days  thereafter,  make  out  and  trans- 
mit a  certificate  of  election  to  each  member  of  the  legislature  and  Territorial  officers 
elect. 

In  pursuance  of  these  laws  an  election  for  Delegate  of  the  Territory 
of  Utah  was  held  on  the  second  Tuesday  of  November,  1880,  and  returns 
were  made  to  the  governor  by  the  proper  returning  oflQcer. 

The  votes  or  returns  were  canvassed  in  the  presence  of  the  governor 
and  secretary,  and  thereijpon  the  governor  made  the  following  decision  : 


€56  DIGEST    OF   ELECTION    CASES. 

DECISION  OF  THE   GOVERNOR. 

Ou  the  14tli  day  of  December,  1880,  the  secretary  of  the  Territory,  in  my  presence, 
opened  the  returns  received  by  mail  of  an  election  for  Delegate  of  the  Territory  of 
Utah  in  the  Forty-seventh  Congress,  held  on  the  Tuesday  after  the  first  Monday  of 
November,  of  said  year. 

The  returns  show  that  George  Q.  Cannon  received  18,568  votes,  and  Allen  G.  Camp- 
bell received  1,357  votes.  At  that  time  notice  of  protest  by  Allen  G.  Campbell  was 
given,  which  protest  was  afterwards  filed,  objecting  to  a  certificate  being  issued  to 
Mr.  Cannon. 

In  addition  to  this  statement  of  the  governor,  the  answer  of  Campbell 
admits,  and  the  other  facts  in  the  case  show,  that  Cannon  received 
18,568  votes,  and  Campbell  received  1,357  votes. 

On  this  statement  Cannon  would  be  entitled  to  his  seat  unless  it  is 
shown  that  he  is  disqualified  under  the  Constitution  and  the  laws. 

Mr.  Cannon,  in  his  notice  of  contest,  makes  this  allegation  among 
others,  viz: 

1.  That  the  returns  of  the  election  of  Delegate  to  the  Forty-seventh  Congress  of  the 
United  States,  held  on  the  2d  day  of  November,  1880,  in  the  several  counties  of  the 
Territory  of  Utah,  which  were  prepared  and  forwarded  to  the  secretary  of  the  Terri- 
tory, under  sections  23  and  24  of  the  compiled  laws  of  the  Territory  of  Utah,  copies  of 
which  returns,  marked  respectively  A,  B,  C,  D,  &c,,  are  hereto  annexed  showing, 
as  the  fact  was,  that  18,568  votes  were  legally  cast  for  me  at  said  election,  that  only 
1,357  votes  were  cast  for  you,  and  that  only  8  votes  were  cast  for  all  other  candidates, 
and  that  I  was  therefore  legally  elected  to  said  office  of  Delegate  from  the  Territory 
of  Utah  in  the  Forty-seventh  Congress,  and  was  also  entitled  to  receive  the  certificate 
of  election,  and  to  be  enrolled  and  sworn  as  such  Delegate. 

This  specification  embraces  the  averments:  (1)  that  the  county  returns  for  the  sev- 
eral counties  of  the  Territory  were  prepared  and  forwarded  to  the  secretary  according 
to  law ;  (2)  that  copies  of  the  returns  were  annexed  to  the  notice  of  contest. 

Now,  what  is  Mr.  Campbell's  answer  to  this  branch  of  the  notice  of  contest  (page 
32  of  the  Record)? 

"1.  I  admit  that  returns  of  the  election  of  Delegate  to  the  Forty-seventh  Congress 
of  the  United  States,  held  on  the  2d  day  of  November,  1881,  in  the  several  counties  of 
the  Territory  of  Utah,  were  made  to  the  secretary  of  said  Territory,  of  which  copies 
are  annexed  to  your  notice  and  referred  to  therein  as  marked  respectively  A,  B,  C,  D,  tjrc, 
but  I  deny  that  said  returns  showed,  or  that  the  fact  was,  that  18,568  votes  were 
legally  cast  for  you  at  said  election,  or  that  you  were  legally  or  otherwise  elected  to 
said  office  of  Delegate  from  the  Territory  of  Utah  in  the  Forty-seventh  Congress,  or 
entitled  to  receive  the  certificate  of  election,  or  to  be  enrolled,  sworn,  or  otherwise  in 
any  manner  recognized  as  such  Delegate." 

The  admissions  of  Campbell  by  his  answer,  among  other  things,  are  that  the  county 
returns  for  the  several  counties  of  the  Territory  were  made  to  the  secretary,  and  that 
copies  of  those  returns  were  annexed  to  the  notice  of  contest,  and  particularly  speci- 
fying them  as  Exhibits  A,  B,  C,  D,  &c. 

This  is  conclusive  on  the  question  of  the  state  of  the  vote  and  dispenses  with  proof 
of  that  fact,  and  especially  so  if  you  apply  the  rule  that  a  pleading  ia  to  be  taken 
most  strongly  against  the  party  pleading. 

The  exhibits  referred  to  are  set  out  in  full  in  the  record,  and  show  the 
entire  vote  of  the  Territory  by  precincts  and  counties,  and  fully  verify 
the  statements  of  Mr.  Cannou. 

There  is  no  proof  or  attempted  proof  to  show  that  contestant  did  not 
receive  the  votes  claimed  by  him,  or  that  said  votes  were  illegal.  This 
fact,  then,  may  be  regarded  as  settled  and  beyond  dispute. 

The  other  grounds  for  disputing  his  seat  are,  first,  that  he  was  and  is 
an  unnaturalized  alien ;  and,  secondly,  that  he  is  a  polygamist. 

The  question  of  naturalization,  we  think,  is  settled  by  the  record  and 
proof  in  the  case  beyond  all  doubt. 

Upon  this  question  we  adopt  the  conclusions  of  the  contestant,  Mr. 
Cannon,  as  a  fair  statement  of  the  facts,  which  are  fully  supported  by 
the  record,  and  are,  in  fact,  a  substantial  transcript  of  it. 


CANNON    VS.    CAMPBELL.  657 

NATUKALIZATIOX. 

The  foUowiug  ar  ethe  statutory  provisions  under  which  Mr.  Cannon  was  natural- 
ized: 

"Auy  alien,  being  a  free  white  person,  may  be  admitted  to  become  a  citizen  of  the 
United  States,  or  any  of  them,  on  the  following  conditions,  and  not  otherwise: 

"First.  That  he  shall  have  declared,  on  oath  or  aflBLrmation,  before  the  supreme, 
8ni)erior,  district,  or  circuit  court  of  some  one  of  the  States,  or  of  the  Territorial  dis- 
tricts of  the  United  States,  or  a  circuit  court  or  district  court  of  the  United  States, 
three  years  at  least  before  his  admission,  that  it  was,  bona  fide,  his  intention  to  be- 
come a  citizen  of  the  United  States,  and  to  renounce  forever  all  allegiance  and  fidel- 
ity to  auy  foreign  prince,  potentate,  'state,  or  sovereignty  whatever,  and  particularly, 
by  name,  the  prince,  potentate,  state,  or  sovereignty  whereof  such  alien  may,  at  the 
time,  be  a  citizen  or  subject. 

* '  Secondly.  That  he  shall  at  the  time  of  his  application  to  be  admitted,  declare,  on  oath 
or  affirmation,  before  some  one  of  the  courts  aforesaid,  that  he  will  support  the  Consti- 
tution of  the  United  States,  and  that  he  doth  absolutely  and  entirely  renounce  and 
abjure  all  allegiance  and  fidelity  to  every  foreign  prince,  potentate,  stat«,  or  sov- 
ereignty ■whatever,  and  particularly,  by  name,  the  prince,  potentate,  state,  or  sov- 
eignty  whereof  he  was  before  a  citizen  or  subject ;  which  proceedings  shall  be  re- 
corded by  the  clerk  of  the  court. 

"  Thirdly.  That  the  court,  admitting  such  alien,  8hall  be  satisfied  that  he  has  resided 
■within  the  United  States  five  years  at  least,  and  within  the  State  or  Territory,  where 
such  court  is  at  the  time  held,  oue  year  at  least  ;  and  it  shall  further  appear  to  their 
satisfaction  that  during  that  time  he  has  behaved  as  a  man  of  good  moral  character, 
attached  to  the  principles  of  the  Constitution  of  the  United  States,  and  well  disposed 
to  the  good  order  and  happiness  of  the  same,  provided  that  the  oath  of  the  applicant 
shall,  in  no  case,  be  allowed  to  prove  his  residence."    (2  Stat.,  153.) 

"  Any  alien,  being  a  free  white  person  and  a  minor,  under  the  age  of  twenty-one 
years,  who  shall  have  resided  in  the  United  States  three  years  next  preceding  his 
arriving  at  the  age  of  twenty-one  years,  and  who  shall  have  continued  to  reside  therein 
to  the  time  he  may  make  application  to  be  admitted  a  citizen  thereof,  may,  after  he 
has  arrived  at  the*  age  of  twenty-one  years,  and  after  he  shall  have  resided  five  years 
withiu  the  United  States,  including  the  three  years  of  his  minority,  be  admitted  a 
citizen  of  the  United  States,  without  having  made  the  declaration  required  in  the 
first  condition  of  the  first  section  of  the  act  to  which  this  is  in  addition,  three  years 
previous  to  his  admission ;  provided  such  alien  shall  make  the  declaration  required 
therein  at  the  time  of  his  or  her  admis.sion ;  and  shall  further  declare,  on  oath,  and 
prove  to  the  satisfaction  of  the  court.,  that  for  three  years  next  preceding  it  has  been 
the  bona  fide  intention  of  such  alieu  to  become  a  citizen  of  the  Unit«d  States,  and  shall, 
in  all  other  respects,  comply  with  the  laws  in  regard  to  naturalization."    (4  Stat.,  69.) 

The  last  paragraph  was  enacted  May  26,  1824 ;  the  others,  April  14,  1802. 

The  record  of  the  court  is  in  these  words : 

United  States  first  district  court  for  the  Territory  of  Utah. 

"  United  States  of  America, 

"  Territory  q^  Utah,  Great  Salt  Lake  County,  ss  : 

"  Be  it  remembered  that  on  the  seventh  day  of  December,  A.  D.  1854,  George  Q. 
Cannon,  a  subject  of  Queen  Victoria,  made  applicatioi^  and  satisfied  the  court  that  he 
came  to  reside  in  the  United  States  before  he  was  eighteen  years  of  age,  and  there- 
upon the  said  George  Q.  Cannon  appeared  in  open  court  and  was  sworn  in  due  form  of 
law,  and  on  his  oatn  did  say  that  for  three  years  last  past  it  has  been  his  bona  fide 
intention  to  become  a  citizen  of  the  United  States,  and  to  renounce  and  abjure,  for- 
ever, all  allegiance  and  fidelity  to  every  foreign  prince,  potentate,  state,  and  sov- 
ereignty whatever.  And  thereupon,  the  court  being  satisfied  by  the  oaths  of  Joseph 
Cain  and  Elias  Smith,  two  citizens  of  the  United  States,  that  the  said  George  Q.  Can- 
non for  one  year  last  past  has  resided  in  this  Territory,  and  for  four  years  previous 
thereto  he  resided  in  the  United  States ;  that  during  that  time  he  has  behaved  as  a 
man  of  good  moral  character  ;  that  he  is  attached  to  the  principles  of  the  Constitu- 
tion of  the  United  States,  and  well  disposed  to  the  good  order  of  the  inhabitants 
thereof,  admitted  him  to  be  a  citizen  of  the  same  ;  and  thereupon  the  said  George  Q. 
Cannon  was  in  due  form  of  law  sworn  to  support  the  Constitution  of  the  United 
States,  and  absolutely  and  entirely  to  renounce  and  abjure,  forever,  all  allegiance  and 
fidelitv  to  every  foreign  prince,  potentate,  state,  and  sovereignty  whatever,  and  par- 
ticularly to  Victoria,  Queen  of  Great  Britain  and  Ireland,  whose  subject  he  hereto- 
fore has  been. 

"  In  testimony  whereof  I  have  hereunto  subscribed  my  name  and  affixed  the  seal  of 

H.  Mis.  35 42 


658  DIGEST  OF  ELECTION  CASES. 

said  court,  this  seventh  day  of  December,  one  thousand  eight  hundred  and  fifty-four, 
and  of  the  Independence  of  the  United  States  the  seventy-ninth. 

"[L.  8.]  W.  I.  APPLEBY, 

Clerk." 

The  certificate  of  naturalization  granted  to  Mr.  Cannon  is  in  the  same  form,  with 
the  exception  that  instead  of  the  words  "  Queen  Victoria,"  which  appear  in  the  second 
line  of  the  record,  the  words  "  Victoria,  Queen  of  Great  Britain  and  Ireland,"  are 
used  in  the  certificate.  The  certificate  bears  the  seal  of  the  first  district  court  of 
Utah,    The  record  does  not. 

The  doctrine  that  the  judgment  of  naturalization  is  conclusive  on  the  question  of 
residence,  as  upon  all  similar  preliminary  questions,  is  not  only  clear  upon  principle,. 
but  is  well  settled  by  the  authorities,  from  which,  to  avoid  repetition,  full  citations 
will  be  made  at  this  point  for  use  on  other  questions  as  well  as  that  now  under  con- 
sideration. 

In  the  case  of  Campbell  v.  Gordon,  6  Cranch,  176,  the  Supreme  Court  of  the  United 
States  held  as  follows  : 

"In  support  of  the  first  objection  it  is  contended  that,  although  the  oath  prescribed 
by  the  second  section  of  the  act  of  Congress  entitled  'An  act  to  establish  a  uniform 
rule  of  naturalization,  and  to  repeal  the  act  heretofore  passed  on  that  subject,'  passed 
the  29th  of  January,  1795,  was  administered  to  the  said  William  Currie,  by  a  court 
of  competent  jurisdiction,  still  it  does  not  appear  by  the  certificate  granted  to  him  by 
the  court,  and  appearing  in  the  record,  that  he  was  by  the  judgment  of  the  court, 
admitted  a  citizen,  or  that  the  court  was  satisfied  that  during  the  term  of  two  years, 
mentioned  in  the  same  section,  he  had  behaved  as  a  man  of  good  moral  character,  at- 
tached to  the  Constitution  of  the  United  States,  and  well  disposed  to  the  good  order 
and  happiness  of  the  same. 

"  It  is  true  that  this  requisite  to  his  admission  is  not  stated  in  the  certificate  ;  but  it 
is  the  opinion  of  this  court,  that  the  court  of  Suffolk  must  have  been  satisfied  as  to 
the  character  of  the  applicant,  or  otherwise  a  certificate,  that  the  oath  prescribed  by 
law  had  been  taken,  would  not  have  been  granted. 

"  It  is  unnecessary  to  decide  whether,  in  the  order  of  time,  this  satisfaction,  as  to 
the  character  of  the  applicant,  must  be  first  given,  or  whether  it  may  not  be  required 
after  the  oath  is  administered,  and,  if  not  then  given,  whether  a  certificate  of  natural- 
ization must  not  be  withheld.  But  if  the  oath  be  administered,  and  nothing  appears 
to  the  contrary,  it  may  be  presumed,  that  the  court  before  whom  the  oath  was  taken, 
was  satisfied  as  to  the  character  of  the  applicant.  The  oath,  when  taken,  confers 
npon  him  the  rights  of  a  citizen,  and  amounts  to  a  judgment  of  the  court  for  his  ad- 
mission to  those  rights.  It  is,  therefore,  the  unanimous  opinion  of  the  court  that 
William  Currie  was  duly  naturalized." 

The  certificate  of  naturalization,  granted  to  Currie,  and  the  record  thereof,  remain- 
ing in  the  clerk's  ofl&ce,  were  both  in  the  following  words : 

"At  a  district  court  held  at  Suffolk,  October  the  14th,  1795,  William  Currie,  late  of 
Scotland,  merchant,  who  hath  immigrated  into  this  commonwealth,  this  day,  in  open 
court,  in  order  to  entitle  himself  to  the  rights  and  privileges  of  a  citizen,  made  oath 
that,  for  two  years  last  past,  he  hath  resided  in  and  under  the  jurisdiction  of  the 
United  States,  and  for  one  year,  within  this  commonwealth,  and  also  that  he  will 
support  the  Constitution  of  the  United  States,  and  absolutely  and  entirely  renounce 
and  abjure  all  allegiance  and  fidelity  to  any  foreign  prince,  or  other  state,  whatso- 
ever, particularly  to  the  King  of  Great  Britain. 

"A  copy. — Teste  : 

"JOHN  C.  LITTLEPAGE." 

In  this  case,  an  authenticated  copy  of  the  record  of  which  is  filed  with  the  commit" 
tee,  the  Supreme  Court  of  the  United  States  established  the  following  doctrines : 

1.  The  grant  of  a  certificate  of  naturalization,  showing  that  the  oath  of  citizenship 
prescribed  by  law  was  taken,  is  conclusive  proof  that  such  oath  was  taken. 

2.  The  grant  of  such  a  certificate  is  conclusive  proof  that  the  court  was  satisfied 
that  the  applicant  had,  during  the  period  mentioned  in  the  statute,  behaved  as  a  man 
of  good  moral  character,  attached  to  the  principles  of  the  Constitution  of  the  United 
States,  and  well  disposed  to  the  good  order  and  happiness  of  the  same. 

3.  The  oath,  when  taken,  confers  upon  the  applicant  the  rights  of  a  citizen,  and 
amounts  to  a  judgment  of  the  court  for  his  admission  to  those  rights. 

4.  The  fact  that  the  record  of  naturalization  remaining  in  the  clerk's  office  does  not 
expressly  show  that  the  applicant  was  admitted  to  citizenship,  does  not  impair  the 
conclusive  effect  of  the  certificate  granted. 

5.  The  fact  that  such  record  does  not  expressly  show  that  any  proof  was  made  or 
adjudication  had  upon  the  question  of  good  character,  or  of  attachment  to  the  prin- 
ciples of  the  Constitution,  or  of  devotion  to  the  welfare  of  the  country,  does  not  im- 
pair the  conclusive  effect  of  the  certificate  granted. 


CANNON   VS.    CAMPBELL.  659 

This  doctrine  of  the  conclusiveness  of  the  certificate  of  naturalization  is  supported 
by  the  most  cogent  reasons.  Applicants  for  naturalization  in  the  United  States  are 
not  generally  well  infonued  respecting  our  laws  or  the  methods  of  our  courts.  If 
irregularity  or  error  should  creep  into  the  record  not  one  applicant  in  one  liuudred 
would  be  able  to  detect  it,  even  if  he  had,  as  he  has  not,  the  right  eujoyed  in  ordinary 
proceedings  inter  partes  to  be  heard  on  the  form  of  the  recorder  the  mode  of  its  entry. 
He  takes  the  certificate  which  the  court  gives  him,  and,  in  the  faith  that  he  is  a  citi- 
zen of  the  United  States  thenceforth  through  life,  performs  acts  which,  if  his  natu- 
ralization is  invalid,  are  crimes,  makes  oaths  which  are  unauthorized  or  false,  bar- 
gains which  are  ruinous  to  others  or  to  himself;  exercises  without  right  the  functions 
of  the  juror  in  cases  involving  property,  liberty,  and  even  life;  and  holds  offices  in 
which  he  is  a  mere  usurping  interloper.  The  calamities  to  which  the  great  body  of 
our  naturalized  immigrants  would  be  exposed  if  the  validity  of  their  naturalization 
should  be  made  to  depend  upon  the  accuracy  or  regularity  of  the  official  work  of 
clerks  of  courts  would  only  be  equaled  by  those  to  which  other  citizens  would  be 
subjected  by  the  blameless  but  unlawful  acts  of  men  who,  though  citizens  by  repu- 
tation, were  only  foreigners  in  law. 

In  re  Coleman,  15  Blatchf.,  406,  the  court  said  : 

"  The  main  question  discussed  on  the  hearing  of  the  writ  was  whether  the  certifi- 
cate of  citizenship  which  Coleman  used  was  unlawfully  issued.  It  was  contended 
by  the  attorney  for  the  United  States  that  the  certificate  was  unlawfully  issued,  be- 
cause there  was  no  matter  of  record  in  the  superior  court  on  which  to  found  it ;  and 
that  what  has  been  found  in  and  produced  from  the  books  and  files  of  that  court  does 
not  constitute  a  record  of  the  naturalization  of  Coleman.     «     »     » 

"  It  is  hardly  to  be  supposed  that  Congress  intended  to  make  the  applicant  for  citi- 
zenship responsible  for  a  non-compliance  with  any  other  conditions  than  such  as  he 
had  the  power  to  comply  with.  The  applicant  can  declare  his  intention,  and  can  take 
the  prescribed  oath  and  make  the  renunciation.  But  he  cannot  see  to  it  that  the  pro- 
ceedings and  renunciation  are  recorded.  He  can  produce  a  witness  as  to  his  residence 
and  character,  and  can  appear,  in  person,  in  the  proper  court,  and  be  sworn  there  in 
open  court,  with  his  witness  as  to  the  matters  prescribed  in  the  statute.  When  this 
is  done,  he  can  do  nothing  more,  except  to  receive  such  a  certificate  from  the  court  as 
that  which  Coleman  received  from  the  court — a  certificate  which  sets  forth  that  it  is 
given  by  the  court,  under  its  seal ;  that  Coleman  appeared  in  the  court,  on  a  day 
named,  and  applied  to  it  to  become  a  citizen,  and  produced  to  it  such  evidence  and 
made  such  declaration  and  renunciation,  and  took  such  oaths  as  are  required  by  the 
acts  of  Congress  on  the  subject ;  and  that,  thereupon,  the  court  ordered  that  he  be  ad- 
mitted, and  he  was  accordingly  admitted  by  the  court,  to  be  a  citizen  of  the  United 
States.  When  he  has  done  what  the  certificate  says  he  has  done,  and  when  he  leaves 
with  the  clerk  of  the  court  such  papers  as  he  has  signed,  and  when  the  court  tells  him, 
as  it  does  by  the  certificate,  that,  he  having  done  all  that,  the  court  had  thereupon 
ordered  that  he  be  admitted  to  be  a  citizen,  and  when  the  court  gives  the  certificate 
into  his  keeping,  he  has  done  all  he  can  to  comply  with  the  statute.     *     »     » 

"  As  said  before,  there  must  be  an  act  of  admission  by  the  court.  But  the  court  has 
a  right  to  say  what  it  will  regard  as  its  order  that  the  applicant  be  admitted,  and 
what  it  will  regard  as  his  admission.  Whatever  the  court  says  is  its  act  of  admission, 
and  whatever  the  court  says  is  its  order  of  admission,  is  such  act  and  such  order,  when- 
ever the  question  is  brought  up  in  a  collateral  proceeding,  provided  there  is  sufficient 
to  reasonably  amount  to  such  act  and  such  order.  Here  the  superior  court  has  said 
to  Coleman  by  the  certificate  that  he  has  complied  with  all  the  requirements  of  the 
statute,  and  that  it  has  made  an  order  thereupon  that  he  be  admitted  to  be  a  citizen, 
and  that  it  has  admitted  him  to  be  a  citizen.     *•     »     * 

"  The  fact  that  there  is  no  record  in  the  court  of  any  order  directing  the  establish- 
ment and  keeping  of  the  volumes  containing  entries  of  naturalizations  between  1858 
and  1874  is  of  no  consequence.  The  very  keeping  of  them  for  so  long  a  period  is 
equivalent  to  an  order  that  they  be  kept,  and  the  absence  of  any  order  or  practice, 
during  that  period,  as  to  any  other  form  of  order  of  admission  or  record  of  admission, 
shows  that  what  was  kept  and  done  is  to  be  regarded  as  a  record  and  as  the  record." 

In  Spratt  r.  Spratt  (4  Pet.,  393),  the  court  held  as  follows  : 

"As  James  Spratt  arrived  within  the  United  States  after  the  passage  of  the  act  of 
1802,  he  is  embraced  by  the  second  section  of  that  act,  and  was  under  the  necessity  of 
reporting  himself  to  the  clerk,  as  that  section  requires.  Must  this  report  be  made  five 
years  before  he  can  be  admitted  as  a  citizen  1 

"The  law  does  not  in  terms  require  it.  The  third  condition  of  the  first  section  pro- 
vides that  the  court  admitting  such  alien  shall  be  satisfied  that  he  has  resided  within 
the  United  States  fiT'e  years  at  least,  but  does  not  prescribe  the  testimony  which  shall 
be  satisfactory.  This  section  was  in  force  when  James  Spratt  was  admitted  to  be- 
come a  citizen,  and  was  applicable  to  his  case.  But  the  second  section  requires,  in 
addition,  that  he  shall  report  himself  in  the  manner  prescribed  by  that  section;  and 
requires  that  such  report  shall  be  exhibited  'on  his  application  to  be  naturalized,  as 


660  DIGEST    OF   ELECTION    CASES. 

evidence  of  the  time  of  his  arrival  within  the  United  States.'  The  law  does  not  say 
that  this  report  shall  be  the  sole  evidence,  nor  does  it  reqnire  that  the  alien  shall  re- 
port himself  within  any  limited  time  after  his  arrival.  Five  years  may  intervene 
between  his  arrival  and  report,  and  yet  the  report  will  be  valid.  The  report  is  un- 
donbtedly  conclusive  evidence  of  the  arrival,  and  must  be  so  received  by  the  court, 
but  if  the  law  intended  to  make  it  the  only  admissible  evidence,  and  to  exclude  the 
proof  which  had  been  held  sufficient,  that  intention  ought  to  have  been  expressed. 
Yet  the  inference  is  very  strong  from  the  language  of  the  act,  that  the  time  of  the 
arrival  must  be  proved  by  this  report,  and  that  a  court  about  to  admit  an  alien  to  the 
rights  of  citizenship,  ought  to  require  its  production. 

"But  is  it  anything  more  than  evidence  which  ought  indeed  to  be  required  to  sat- 
isfy the  judgment  of  the  court,  but  the  want  of  which  cannot  annul  that  judgment  T 
The  judgment  has  been  rendered  in  a  form  which  is  unexceptionable.  Can  we  look 
behind  it,  and  inquire  on  what  testimony  it  was  produced  f 

"  The  act  does  not  require  that  the  report  shall  be  mentioned  in  the  judgment  of 
the  court,  or  shall  form  a  part  of  the  certificate  of  citizenship.  The  judgment  and  cer- 
tificate are  valid,  though  they  do  not  allude  to  it.  This  furnishes  reason  for  the  opin- 
ion that  the  act  directed  this  report  as  evidence  for  the  court,  but  did  not  mean  that 
the  act  of  admitting  the  alien  to  become  a  citizen  should  be  subject  to  revision  at  all 
times  afterwards,  and  to  be  declared  a  nullity  if  the  report  of  arrival  should  not  have 
been  made  five  years  previous  to  such  admission.  *  *  »  The  various  acts  upon  the 
subject  submit  the  decision  on  the  right  of  aliens  to  admission  as  citizens  to  courts  of 
record.  They  are  to  receive  testimony,  to  compare  it  with  the  law,  and  to  judge  on 
both  law  and  fact.  This  judgment  is  entered  on  record  as  the  judgment  of  the  court. 
It  seems  to  us,  if  it  be  in  legal  form,  to  close  all  inquiry,  and,  like  every  other  judg- 
ment, to  be  complete  evidence  of  its  own  validity." 

In  Ritchie  v.  Putnam  (13  Wend.,  524)  the  court  said : 

"  It  need  not  appear  by  the  record  that  all  the  preliminary  requisites  to  a  naturali- 
zation were  complied  with.  The  judgment  of  the  court  admittiugthe  alien  to  become 
a  citizen  is  conclusive  evidence  upon  that  point." 

In  McCarthy  v.  Marsh  (1  Seld.,  263)  the  court  held: 

"  The  second  question  is  whether  the  respondent  was  lawfully  admitted  a  citizen  of 
the  United  States  by  the  court  of  common  pleas  of  Saratoga  County  at  the  August 
terra  thereof,  1834,  and  this  resolves  itself  into  a  question  of  evidence. 

"The  respondent  produced  the  record  of  his  admission,  which  was  in  due  form  and 
according  to  law.  The  appellants  claimed  that  this  was  not  sufficient,  and  that  the 
respondent  was  bound  to  go  farther,  and  prove  that  he  had  in  due  form  of  law,  more 
than  two  years  before  his  admission,  declared  his  intention  to  become  a  citizen  of  the 
United  States,  insisting  that  such  declaration  was  a  condition  precedent,  with  which 
the  respondent  must  show  he  had  complied ;  and  the  appellants  further  claimed  that 
notwithstanding  it  was  stated  in  the  record  that  it  appeared  to  the  court  that  the 
respondent  had  more  than  two  years  before  declared  in  due  form  of  law  his  inten- 
tion to  become  a  citizen,  yet  that  fact  was  open  to  inquiry,  and  they  proceeded  to 
five  proof  rendering  it  somewhat  doubtful  whether  the  respondent  ever  had  declared 
is  intention  in  due  form  of  law. 

"  The  simple  question  then  is,  whether  the  record  is  conclusive  evidence  of  the  fact 
that  a  prior  declaration  of  intention  was  made  in  due  form  of  law.  The  weight  of  au- 
thority is  decidedly  in  the  affirmative.     (Authorities  cited.) 

"  These  authorities  accord  with  the  general  principle  that  a  record  of  the  proceed- 
ings and  judgment  of  a  court  of  competent  jurisdiction  is  conclusive  evidence  of  the 
facts  appearing  therein.  All  courts  look  with  favor  upon  proceedings  to  admit  aliens 
to  citizenship,  and  it  is  just  that  they  should  ;  for  the  want  of  acquaintance  with  our 
laws  and  judicial  proceedings,  the  unsettledness  of  their  residences  in  general  for  some 
years,  and  the  consequent  liability  to  lose  their  documents  and  papers,  should  shield 
them  from  technical  and  sharp  objections  to  their  naturalization  papers  whenever 
there  appears  to  have  been  an  laonest  intention  to  become  a  citizen  and  comply  with 
the  laws  of  our  country."  'v 

In  Priest  v.  Cummings  (16  Wend.,  616)  the  court  said : 

"  As  to  the  second  objection,  the  act  requires  that  the  court  shall  be  satisfied  that 
the  applicant  sustains  a  good  moral  character,  «fec. ,  in  addition  to  his  residence  ;  but 
it  does  not  prescribe  the  kind  of  testimony  to  be  received,  except  that  his  own  oath 
shall  not  be  taken  to  prove  his  residence.  Beyond  this,  the  species  and  amount  of 
proof  rest  entirely  in  the  discretion  of  the  court." 

In  State  v.  Penny  (10  Ark.,  616)  the  attorney-general  took  this  position: 

*' The  judgment  of  the  court  admitting  him  as  a  citizen  is  not  conclusive,  and  the 
regularity  of  the  proceedings  may  be  inquired  into." 

In  reply  the  attorney  for  the  defendant  said : 

"  It  is  well  settled  that  the  judgment  of  the  court  admitting  the  alien  to  become  a 
citizen  is  conclusive  proof  that  the  prerequisites  of  the  law  have  been  complied  with, 
and  it  need  not  appear  by  the  record  of  naturalization." 


CANNON    VS.    CAMPBELL.  661 

The  conrt  held  : 

"Until  reversed,  the  judgment  rendered,  as  shown  by  the  transcript,  is  conclusive 
of  its  own  validity,  and  closes  the  door  behind  it  to  all  inquiry." 

There  were  some  other  statements  made  by  Contestee  Campbell  re- 
lating to  other  matters  connected  with  Mr.  Cannon's  naturalization,  but 
they  were  of  so  frivolous  a  character  that  no  further  consideration  of 
them  is  deemed  necessary. 

We  think  the  judgment  of  naturalization  and  the  certificate  issued 
thereon  is  conclusive. 

POLYGAMY. 

The  grave  and  important  question  as  to  whether  polygamy  is  a  dis- 
qualification for  the  office  of  Delegate  from  the  Territories  we  think  is 
settled  by  the  Constitution,  the  laws,  and  the  uniform  practice  of  the 
Government  since  its  formation,  now  nearly  one  hundred  years. 

As  to  who  shall  hold  seats  in  Congress,  there  are  two  distinct  provis- 
ions of  the  Constitution : 

Section  5,  Article  I  of  the  Constitution  is  as  follows : 

Each  House  shall  be  the  judge  of  the  elections,  returns,  and  qualifications  of  its 
own  members;  and  a  majority  of  each  shall  constitute  a  quorum  to  do  business.    *    *    » 

This  provision  in  its  operation  requires  only  a  majority  vote. 

Such  has  been  the  general  practice  of  the  House. 

The  other  provision  is,  "  Each  House  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  behavior,  and,  with  the 
concurrence  of  two-thirds,  expel  a  member."  (Second  clause,  section  5, 
Article  I.) 

The  qualifications  of  Eepresentatives  are  prescribed  by  the  second 
section  of  the  first  article  of  the  Constitution :  They  shall  be  twenty- 
five  years  of  age,  seven  years  a  citizen  of  the  United  States,  and,  when 
elected,  be  inhabitants  of  the  State  in  which  they  shall  be  chosen. 

This  committee  is  to  report  upon  "  the  'prima  facie  right  or  the  final 
right  of  the  claimants  to  the  seat  as  the  committee  shall  deem  proper." 

It  must  be  conceded,  as  we  have  seen,  that  Cannon  has  an  over- 
whelming majority  of  the  votes  cast  for  Delegate  to  Congress. 

We  think,  also,  it  must  be  conceded,  from  the  facts  evidenced  in  the 
case  by  the  record,  that  Cannon  possesses  the  Constitutional  qualifica- 
tions prescribed  by  second  section  of  Article  I  of  the  Constitution. 

Mr.  Cannon,  at  the  time  of  his  election,  was  over  twenty-five  years  of 
age,  had  been  seven  years  a  citizen  of  the  United  States,  and  was  an 
inhabitant  of  the  Territory  in  which  he  was  chosen.  These  are  the  only 
qualifications  to  be  considered. 

There  is  no  power.  State  or  Federal,  under  the  Constitution  by  which 
these  qualifications  can  be  changed,  enlarged,  or  modified  in  any  man- 
ner. 

The  authorities  upon  this  question  are  all  one  way. 

In  the  report  of  the  Committee  on  Elections  of  the  House  in  the  Forty- 
third  Congress,  in  the  case  of  Maxwell  against  Cannon,  and  upon  this 
point,  the  committee  say : 

The  practice  of  the  House  has  been  so  uniform  and  seems  so  entirely  in  harmony 
with  the  letter  of  the  Constitution  that  the  committee  can  but  regard  the  jurisdic- 
tional question  as  a  bar  to  the  consideration  of  qualifications  other  than  those  above 
specified. 

This  is  the  rule  we  think  should  be  applied  to  the  case  before  the 
House. 

The  following  are  some  of  the  authorities  on  this  point :  Story  on  the 


662  .   DIGEST  OF  ELECTION  CASES. 

Constitution,  sections  625-G27 ;  the  contested-election  cases  of  Fouk  vs. 
Trumbull  and  Turney  vs.  Marshall  from  the  State  of  Illinois  (1  Bartlett, 
168 ;  McCrary,  Election  Laws,  sections  227, 228, 252 ;  Donnelly  vs.  Wash- 
burn, Forty-sixth  Congress ;  the  case  of  Wittemore  in  Forty-first  Con- 
gress ;  the  case  of  Matteson  in  the  Thirty-fifth  Congress  j  the  case  of 
Benjamin  G.  Harris,  are  all  in  point. 

But  it  is  said  that  it  may  be  conceded  that  the  rule  above  stated  as  to 
the  power  of  the  House  relating  to  members  is  correct,  but  that  a  Dele- 
gate from  the  Territories  is  not  a  constitutional  officer,  and  does  not  as 
to  qualification  stand  upon  the  same  ground  as  a  member  from  a  State, 
and  that  the  constitutional  provision  does  not  apply  to  a  Delegate ;  that 
he  is  a  nondescript,  and  has  no  right  and  can  claim  no  protection  under 
the  Constitution. 

So  far  as  our  research  has  extended  since  the  formation  of  the  Gov- 
ernment we  can  find  no  case  reported  that  makes  any  distinction  between 
the  qualifications  of  a  member  from  a  State  and  a  Delegate  from  the 
Territory. 

"Whenever  that  question  has  arisen  the  rule  as  to  qualifications  has 
been  the  constitutional  j)rovisiou,  and  this  has  been  applied  to  the  Dele- 
gates from  the  Territories.  The  case  of  James  White,  decided  in  1794, 
is  not  an  exception. 

It  may  be  that  in  express  terms  the  Constitution  does  not  apply  to 
Territories ;  but  the  spirit  and  reason  of  the  Constitution  does  apply 
and  establishes  a  proper  standard. 

If  the  constitutional  standard  is  not  adopted  as  to  qualifications,  then 
there  is  no  rule  for  the  government  of  the  House  as  to  Delegates. 

The  House  at  this  session  may  establish  one  rule,  and  the  next  ses- 
sion may  revoke  or  establish  another  and  different  one,  and  the  right  of 
a  Delegate  would  be  wholly  uncertain. 

There  are  laws  that  have  been  passed  by  Congress  touching  this  sub- 
ject that  give  color  to  the  ^^ews  we  present.  These  laws  show  that  a 
Delegate,  excei>t  as  to  a  vote  in  the  House,  is  put  upon  the  same  footing 
as  a  member  from  a  State. 

Besides,  there  has  always  been  the  same  practice  from  the  formation 
of  the  Government  as  to  Delegates  and  members  by  referring  their  cases 
to  the  Committee  on  Elections,  both  being  treated  alike  in  this  respect. 

The  time,  manner,  and  places  of  elections  of  members  of  Congress, 
including  Delegates  from  the  Territories,  are  prescribed  and  made  the 
same  by  14  IT.  S.  Stat.,  sections  25,  26,  and  27. 

By  section  30,  Revised  Statutes,  the  oath  of  office  of  members  of  Con- 
gress and  Delegates  from  the  Territories  is  prescribed,  and  is  the  same 
for  a  Delegate  as  a  member. 

It  is  important  to  remark  that  this  statute  was  passed  June  1,  1789, 
and  has  ever  since  been  the  law. 

Section  35,  Eevised  Statutes,  provides  that  members  and  Delegates 
are  to  be  paid  the  same  salary. 

Section  51  provides  that  vacancies  in  the  case  of  Delegates  are  to  be 
filled  in  the  same  way  as  in  case  of  members. 

The  organic  law  for  Utah,  September,  1850,  provides : 

That  the  Constitution  and.  laws  of  the  United  States  are  hereby  extended  over  and 
declared  to  be  in  force  in  said  Territory  of  Utah,  so  far  as  the  same  or  any  provision 
thereof  may  be  applicable. 

This  is  a  law  of  Congress  passed  by  virtue  of  the  Constitution,  and  is 
binding  on  Congress  until  repealed. 

Kow,  why  is  the  provision  of  the  Constitution  relating  to  qualification 
of  members  not  ai>plicable  to  the  Territories  ?    What  reason  can  be  given 


CANNON   VS.    CAMPBELL.  663 

why  it  should  not  apply?  What  better  standard  for  qualification  can 
be  made  ? 

The  adoption  of  the  rule  establishes  uniformity  and  certainty,  the 
operation  is  salutary,  and  its  adoption  since  the  formation  of  the  Grov- 
ernment  demonstrates  its  advantages  and  necessity. 

The  argument  is  made  that  a  Delegate  is  not  a  constitutional  officer, 
and,  therefore,  not  a  member  of  the  House  in  the  sense  of  the  Constitu- 
tion, and  that  the  House  may  seat  or  unseat  a  Delegate  at  will. 

We  believe  this  is  the  first  time  since  the  formation  of  the  Govern- 
ment that  this  argument  has  been  advanced. 

If  a  Delegate  from  a  Territory  is  not  a  member  by  virtue  of  the  Con- 
stitution and  laws,  then  what  rule  or  law  do  you  apply  to  him!  Is  it 
the  arbitrary  will  or  caprice  of  the  House  at  each  session  ! 

If,  as  is  said,  a  Delegate  is  not  a  member,  certainly  you  cannot  in- 
voke any  provision  of  the  Constitution  as  to  qualification  or  expulsion. 

The  constitutional  rule  wholly  fails  upon  this  theor3\ 

It  would  follow  from  this  view  that  the  constitutional  right  of  the 
House  to  judge  of  the  election,  returns,  and  qualifications  of  its  mem- 
bers does  not  apply  to  Delegates,  and  therefore  the  House  is  without 
constitutional  power  in  the  premises,  and  that  whatever  power  the 
House  possesses  as  to  Delegates,  it  must  be  derived  from  some  other 
source. 

The  extraordinary  and  dangerous  doctrine  is  advanced  by  the  majority 
of  the  committee — 

That  the  Delegates  sit  iu  the  lower  House  by  its  grace  and  permission,  and  it  makes 
no  difterence  whether  that  permission  is  expressed  in  a  statute  or  mere  resolution  of 
the  House. 

The  House  can  at  any  time  disregard  it  and  refuse  to  be  bound  by  it. 

It  [Congress]  cannot  affix  a  qualification  by  law  for  a  Delegate  and  bind  anyHoose 
except  the  one  assenting  thereto.  Congress  cannot  bind  the  House  by  any  law  as  to 
the  qualification  of  a  Delegate. 

Our  opinion  is  that  it  is  competent  for  Congress,  by  a  proper  statute, 
to  provide  for  the  election  in  the  Territories  of  Delegates  to  Congress, 
under  Article  IV,  section  3,  clause  2 : 

The  Cougress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belonging  to  the  United  States. 

It  has  been  decided  under  this  article  of  the  Constitution  a  great 
many  times  that  it  gives  Congress  the  right  to  legislate  for  the  Terri- 
tories, and  to  make  such  laws  and  rules  as  may  be  for  the  advantage  of 
the  Territories  and  of  the  country. 

i^ow,  under  this  clause  of  the  Constitution,  if  in  the  opinion  of  Congress, 
in  making  needful  rules  and  regulations  respecting  the  Territories,  it 
should  be  necessary  to  provide  for  the  election  of  a  Delegate  from  said 
Territory  to  this  House,  and  Congress  should  so  provide  that  said  Dele- 
gate should  have  a  seat  and  the  right  to  debate,  could  the  House  alone 
nullify  that  law  and  refuse  to  seat  the  Delegate ! 

Why  is  not  the  House  bound  by  constitutional  laws  !  What  right 
has  the  House  to  nullify  and  refuse  to  obey  a  law  it  has  helped  to 
make? 

We  have  already  referred  to  various  laws  of  Congress  making  express 
provisions  for  the  election  of  Delegates  from  the  Territories,  giving  them 
a  right  to  a  seat  iu  the  House,  and  generally  applying  the  same  rules  to 
Delegates  as  members,  except  Delegates  have  not  the  right  to  vote. 

Also,  as  we  have  seen,  the  organic  law  of  Utah  adopts  the  Constitu- 
tion and  laws  of  the  United  States,  so  far  as  applicable,  as  a  part  of  that 
organic  law. 


664  DIGEST    OF    ELECTION    CASES. 

Also,  sec.  1891,  Eevised  Statutes,  gives  the  Constitution  and  laws  force 
and  eflect  in  all  the  Territories,  so  far  as  applicable. 

The  law-making  department  of  the  Government  has  made  these  various 
laws  in  a  constitutional  way,  and  until  repealed  they  are  binding  upon 
every  individual  in  the  land  and  every  department  of  the  Government, 
including  Congress.    No  one  is  above  the  laws  in  this  country. 

Certainly  one  House  alone  cannot  repeal  a  law  of  Congress  nor  nullify 
it  by  any  direct  or  indirect  proceeding.  It  is  absolutely  bound  by  the 
law. 

If  Congress  has  the  right  to  make  a  law  and  provide  for  the  election  of 
Delegates  to  this  House,  and  if  the  constitutional  qualifications  do  not 
apply  to  them,  and  there  is  no  statute  fixing  their  qualifications,  it  would 
seem  to  follow  that  the  House  would  be  bound  to  admit  as  a  Delegate 
under  the  law  such  persons  as  the  people  of  the  Territory  might  elect 
to  represent  them,  however  obnoxious  they  might  be  to  the  House.  The 
people  of  the  Territory  being  satisfied,  no  one  else  can  complain. 

Suppose  Congress  should  pass  a  law  providing  that  Cabinet  officers 
should  be  allowed  seats  in  the  House,  with  the  privilege  of  answering 
questions  put  to  them  relating  to  the  Executive  Department,  and  the 
other  Departments  of  which  they  were  chief,  and  with  the  right  to 
debate. 

Then,  could  the  House  refuse  to  permit  these  officers  seats  and  the 
privileges  accorded  to  them  under  the  law  ? 

Could  the  House  refuse  them  a  seat  on  the  ground  that  they  were 
not  qualified,  and  set  up  some  fanciful  standard  of  qualifications  not 
prescribed  by  the  statute  ? 

Could  the  House  exclude  them  under  the  law  upon  the  ground  that 
they  were  heretics,  or  Mormons,  or  polygamists — Catholics,  Democrats, 
Eepublicans,  or  Greeubackers  ? 

Would  not  the  House  be  bound  to  obey  the  law  that  had  been  made 
by  Congress  and  permit  the  Cabinet  to  seats,  however  offensive  they 
might  be  personally  ? 

The  logic  of  the  majority  of  the  committee  is  that  one  House  alone 
could  nullify  the  law  and  exclude  ad  libitum. 

In  the  Forty-third  Congress,  in  the  case  of  Maxwell  vs.  Cannon,  pre- 
cisely the  same  question  was  involved  in  that  case  as  in  the  one  before 
the  committee. 

The  question  was  stated  this  way : 

That  George  Q,  Cannon  is  not  qualified  to  represent  said  Territory  or  to  hold  his 
seat  in  the  Forty-third  Congress,  for  the  reason,  as  shown  by  the  evidence,  that  he, 
on  and  before  the  day  of  tbe  election  in  August,  1872,  was  openly  living  and  cohabit.- 
ing  with  four  women,  as  his  wives,  in  Salt  Lake  City,  in  Utah  Territory,  and  he  is 
still  living  and  cohabiting  with  them. 

On  the  question  of  qualifications,  and  the  effect  of  making  the  Consti- 
tution a  part  of  the  law  by  act  of  Congress,  the  committee  say : 

It  being  conceded  that  the  contesteehas  these  qualifications,  one  other  inquiry  only 
under  this  head  remains,  to  wit :  Does  the  same  rule  apply  in  considering  the  case  of 
a  Delegate  as  of  a  member  of  this  House?  This  question  seems  not  to  have  been 
raised  heretofore.  The  act  organizing  the  Territory-  of  Utah,  approved  September  9, 
1850,  enacts  that  the  Constitution  and  laws  of  the  United  States  are  hereby  extended 
over,  and  declared  to  be  in  force  in,  said  Territory  of  Utah,  so  far  as  the  same,  or  any 
provision  thereof,  may  be  applicable.  It  was  said,  on  the  argument,  that  the  Consti- 
tution cannot  be  extended  over  the  Territories  by  act  of  Congress,  and  the  views  of 
Mr.  Webster  were  quoted  in  support  of  this  position. 

We  do  not  deem  it  necessary  to  consider  that  question,  because  it  will  not  be  denied 
that  Congress  had  the  power  to  make  the  Constitiation  a  part  of  the  statutory  law  of 
the  Territory  as  much  as  any  portion  of  the  organic  act  thereof.  For  the  purposes  of 
this  inquiry  it  makes  no  difference  whether  the  Constitution  is  to  be  treated  as  consti- 


CANNON    VS.    CAMPBELL.  665 

tntional  or  statutory  law.     If  either,  it  is  entitled  to  be  coneidered  in  disposing  of 
this  case. 

Upon  this  point  there  does  not  seem  to  have  been  any  difference  of 
opinion  in  the  committee. 

The  committee  in  the  same  case,  referring  to  the  question  of  polyga- 
my, say : 

The  question  raised  in  the  specification  of  contestant's  counsel,  and  above  tran- 
scribed, is  a  grave  one,  and  unquestionably  demands  the  consideration  of  the  House. 
This  committee,  while  having  no  desire  to  shrink  from  its  investigation,  finds  itself 
confronted  with  the  question  of  jurisdiction  under  the  order  referring  the  case. 

The  Committee  on  Elections  was  organized  under  and  pursuant  to  article  1,  section 
5,  of  the  Constitution,  which  declares:  "  Each  House  shall  be  the  judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own  members."  The  first  standing  committee 
appointed  by  the  House  of  Eepresentatives  was  the  Committee  on  Elections.  It  was 
chosen  by  ballot,  on  the  13th  day  of  April,  1789 ;  and  from  that  time  to  this,  in  the 
vast  multitude  of  cases  considered  by  it,  with  a  few  unimportant  exceptions,  in  which 
the  point  seems  to  have  escaped  notice,  the  range  of  its  inquiry  has  been  limited  to  the 
execution  of  the  power  conferred  by  the  above  provision  of  the  Constitution. 

What  are  the  qualifications  here  mentioned  and  referred  to  the  Committee  on  Elec- 
tions? Clearly,  the  constitutional  qualifications,  to  wit,  that  the  claimant  shall 
have  attained  the  age  of  twenty-five  years,  been  seven  years  a  citizen  of  the  United 
States,  and  shall  be  an  inhabitant  of  the  State  in  which  he  shall  be  chosen.  The 
practice  of  the  House  has  been  so  uniform,  and  seems  so  entirely  in  harmony  with 
the  letter  of  the  Constitution,  that  the  committee  can  but  regard  the  jurisdictional 
question  as  a  bar  to  the  consideration  of  qualifications  other  than  those  above  speci- 
fied, mentioned  in  the  notice  of  contest,  and  hereinbefore  alluded  to. 

We  conclude  that  the  question  submitted  to  us,  under  the  order  of  the  House^ 
comes  within  the  same  principles  of  jurisdiction  as  if  the  contestee  were  a  member^ 
instead  of  a  Delegate. 

The  minority  said : 

It  is  admitted  in  the  report,  and  the  fact  has  not  been  and  is  not  denied,  that  Mr. 
Cannon  possesses  the  constitutional  qualifications,  unless  the  qualifications  of  a  Dele- 
gate in  Congress  from  a  Territory  ditfer  from  the  qualifications  fixed  by  the  Constitu- 
tion for  a  member  of  the  House.  There  can  be  no  sufficient  reason  assigned  for  the 
position  that  the  qualifications  are,  any  different.  *  »  «  The  line  of  demarkation 
between  these  two  great  powers  of  the  House,  the  power  to  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members,  by  a  mere  majority  vote,  and  the  power 
to  expel  its  members  by  a  two-thirds  vote,  is  clear  and  well  defined. 

The  "  views  "  of  the  minority  on  the  point  were  further  expressed  in 
these  words: 

But  a  graver  question  than  those  we  have  considered  is  the  question  whether  the 
House  ought,  as  a  matter  of  policy,  or  to  establish  a  precedent,  to  expel  either  a  Dele- 
gate or  member  on  account  of  alleged  crimes  or  immoral  practices,  unconnected  with 
their  duties  or  obligations  as  members  or  Delegates,  when  the  member  or  Delegate 
possesses  all  the  qualifications  to  entitle  him  to  his  seat. 

If  we  are  to  go  into  the  question  of  the  moral  fitness  of  a  member  to  occupy  a  seat 
in  the  House,  where  will  the  inquiry  stop  ?  What  standardshall  we  fix  in  determin- 
ing what  is  and  what  is  not  sufficient  cause  for  expulsion  ?  If  a  number  of  members 
engage  in  the  practice  of  gaming  for  money  or  other  valuable  thing,  or  are  accused  of 
violating  the  marital  vow  by  intimate  association  with  four  women,  three  of  whom 
are  not  lawful  wives,  or  are  charged  with  any  other  offense,  and  a  majority  of  the 
House,  or  even  two-thirds,  expel  them,  it  may  be  the  recognition  of  a  dangerous 
power  and  policy.  If  exercised  and  adopted  by  one  political  party  to  accomplish  par- 
tisan ends,  it  furnishes  a  precedent  which  it  will  be  insisted  justifies  similar  action  by 
the  opposite  party,  when  they  have  a  majority  or  a  two-thirds  majority  in  the  House  ; 
and  thus  the  people  are  deprived  of  representation,  and  their  Representatives,  possess- 
ing the  necessary  qualifications,  are  expelled  for  causes  outside  of  the  constitutional 
qualifications  of  members,  or  those  which  a  Delegate  must  possess,  so  far  as  hisqnal- 
ifications  are  fixed  by  reason  or  analogy,  or  are  drawn  from  the  principles  of  our  rep- 
resentative system  of  government 

It  may  be  stated  that  the  reports,  both  of  the  majority  and  minority, 
■were  made  by  Republicans. 

That  is  a  precedent  that  covers  the  case  before  this  committee  in 
every  particular.    It  was  exhaustively  discussed  in  the  committee  and 


666  DIGEST  OF  ELECTION  CASES. 

in  the  House,  and  was  adopted  by  the  House  by  an  overwhelming  ma- 
jority, and  it  stands  to-day  as  the  rule  and  law  of  the  House,  unless  it 
shall  be  reversed. 

The  issue  in  that  case  was  sharply  made,  and  the  rule  established 
that  Delegates  from  Territories  are  entitled  to  the  benefit  of  the  con- 
stitutional limitations  as  to  qualifications,  and  that  polygamy  was  not 
a  disqualification. 

Now,  if  the  rule  that  has  been  established  and  practiced  since  the 
formation  of  the  Government  as  to  qualification  for  members  and  Dele- 
gates to  the  House  is  to  be  reversed  and  a  different  rule  adopted,  what 
standard  shall  it  be  ! 

This  House  may  exclude  a  member  on  a  charge  of  polygamy.  The 
next  House  may  exclude  a  person  elected  because  he  is  a  heretic  or  a 
Catholic  or  a  Methodist,  or  because  he  had  been  charged  by  his  oppo- 
nent with  adultery  or  some  other  offense. 

Everyone  can  see  that  such  a  rule  or  license  would  be  dangerous  to 
the  rights  and  liberties  of  the  citizens  and  an  end  to  republican  govern- 
ment. 

The  party  in  power  would  be  governed  by  arbitrary  will  and  caprice 
alone. 

Mr.  Cannon,  the  contestant  here,  claims  in  good  faith  that  polygamy 
is  a  religious  conviction  and  principle  with  him  and  his  people,  and  in 
this  he  is  entitled  to  protection  under  the  Constitution. 

The  people  he  represents  have  elected  him  and  are  satisfied  with  him, 
and  this  House  should  be  content. 

The  sixth  article  of  the  Constitution  provides  that — 

No  reUgioua  test  shall  ever  be  required  as  a  qualification  for  any  office  of  public 
trust  under  the  United  States. 

It  seems  to  us  that  the  contestant  is  entitled  to  the  above  provision 
of  the  Constitution  as  a  protection.  He  has  been  convicted  of  no  crime 
and  there  is  no  law  on  the  statute  book  that  disqualifies  him  as  a  Dele- 
gate. 

IS  MR.   CAMPBELL  ENTITLED  TO  A  SEAT! 

Mr.  Campbell  insists  that  although  he  may  be  a  minority  candidate, 
Mr.  Cannon's  ineligibility  entitles  him  to  the  seat.  If  there  are  any 
questions  settled  beyond  the  reach  of  argument  this  is  one  of  them. 

In  the  case  of  Maxwell  v.  Cannon  (Smith,  182)  the  Committee  of 
Elections  say : 

The  contestant  insists  upon  his  right  to  the  seat  as  the  minority  candidate,  in  case 
the  House  shall  ultimately  determine  to  unseat  or  expel  the  sitting  member.  The 
counsel  for  the  contestant  referred  the  committee  to  the  case  of  A.  S.  Wallace  v.  W. 
O.  Simpson,  in  the  Forty-first  Congress,  in  support  of  the  claim  of  contestant.  A  crit- 
ical exaimination  of  the  case  will  show  that  it  cannot  be  considered  as  authority  for 
the  doctrine.  ■♦  •  »  Not  only  is  this  not  an  authority  for  the  doctrine  contended 
for,  but  the  cases  establishing  the  opposite  doctrine  are  so  numerous  and  uniform  as 
to  absolutely  remove  the  question  in  this  country  from  the  realm  of  debate. 

The  committee  cite  the  following  cases:  Smith  v.  Brown  (2  Bartlett, 
395) ;  Ramsey  v.  Smith  (Clarke  &  Hall,  23) ;  Albert  Gallatin,  Senate, 
1793;  Philip  B.  Key,  House,  1807;  John  Bailey,  House,  1824;  James 
Shields,  Senate,  1849 ;  J.  Y.  Brown,  House,  1859 ;  Cushing's  Treatise ; 
Zeigler  v.  Rice  (2  Bartlett,  884) ;  Simeon  Corley,  P.  M.  B.  Young,  Kelson 
Tift,  and  R.  B.  Butler,  House,  Forty-third  Congress ;  F.  E.  Shober, 
House,  Forty-first  Congress,  and  J.  C.  Abbott,  Senate,  Forty-second 
Congress. 

Our  conclusions  are  that  Cannon  had  a  clear  majority  of  the  legal 
votes  for  Delegate. 


STOVELL    VS.    CABELL.  667 

That  he  possesses  the  necessary  qualifications  under  the  Constitution 
and  laws. 

That  he  is  entitled  to  the  seat,  and  we  recommend  the  following 
resolution  for  the  consideration  of  the  House : 

Resolved^  That  George  Q.  Cannon  was  duly  elected  and  returned  as 
Delegate  from  the  Territory  of  Utah,  and  is  entitled  to  a  seat  as  Dele- 
gate in  the  Forty-seventh  Congress. 

S.  W.  MOULTON. 
GIBSON  ATHERTON. 
L.  H.  DAVIS. 
G.  W.  JONES. 


JOHN  T.  STOVEIili  vs.  GEORGE  C.  CABEIilj. 

Fifth  Congressional  Disteict  of  Virginia. 

Held,  That  depositions  on  behalf  of  coutestant,  relating  to  irregularities  at  xjrecincts 
not  mentioned  in  the  notice  of  contest,  and  which  were  objected  to  by  contestee 
for  that  reason,  are  inadmissible. 

There  is  no  statute  of  Virginia  which  forbids  the  use  of  two  ballot-boxes,  one  for 
white  and  one  for  colored  voters ;  and  their  use  did  not  interfere  with  the  purity, 
freedom,  or  convenience  of  the  election. 

Even  if  one  of  the  judges  of  election  placed  the  ballot  of  a  voter  in  his  pocket,  and 
not  into  the  ballot-box  ( which  Avas  not  proven),  that  fact  would  not  authorize  the 
rejection  of  the  vote  of  the  precinct. 

Depositions  taken  before  a  county  clerk,  and  objected  to  at  the  time,  are  not  admissi- 
ble, because  he  had  no  authority  to  take  them. 

The  House  adopts  the  report. 


July  18, 1882. — Mr.  Atherton,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

REPORT: 

Your  committee,  having  had  under  consideration  the  contest  for  a  seat  in 
the  House  of  Representatives  from  the  fifth  Congressional  district  of  Vir- 
'   gitiia,  submit  the  following  report : 

The  parties  to  the  contest  are  John  T.  Stovall,  who  was  the  candidate 
upon  the  ticket  known  as  the  Readjuster  ticket,  and  George  C.  Cabell, 
who  was  the  Democratic  candidate.  This  district  is  composed  of  the 
counties  of  Halifax,  Pittsylvania,  Henry,  Franklin,  Patrick,  Floyd,  Car- 
roll, and  Grayson,  and  the  town  of  Danville. 

The  oflacial  returns  made  under  the  laws  of  Virginia  to  the  office  of 
the  secretary  of  the  commonwealth,  and  duly  canvassed  by  the  State 
board  of  canvassers  on  the  fourth  Monday  of  November,  1880,  show 
(11,778)  eleven  thousand  seven  hundred  and  seventy-eight  votes  for 
George  C.  Cabell,  and  (10,919)  ten  thousand  nine  hundred  and  nine- 
teen votes  for  John  T.  Stovall,  or  a  majority  of  859  votes  for  the  con- 
testee Cabell. 

The  detailed  statement  of  the  vote  is  as  follows  : 


668 


DIGEST  OF  ELECTION  CASES. 


Statement  of  the  whole  nuniber  of  votes  cast  in  the  counties  and  corporations  forming  the 
fifth  Congressional  district  of  Virginia,  in  an  election  for  a  Reprenentative  in  the  Congress 
of  the  United  States  held  pursuant  to  law  the  fi,rst  Tuesday  after  the  first  Monday  in  No- 
vember, 1880. 


George  C. 
CabeU. 

John  T 
Stovall. 

Tony  Sto- 
vall. 

T.  Stovall. 

Beverly  A. 
Davis. 

Halifax 

1,839 

3,176 
725 

1,778 
769 
692 

1,160 
761 
731 
147 

2,179 

2,773 

1,191 

1,464 

750 

605 

494 

783 

585 

95 

Fran  Kiln 

1 

Patrick    

Floyd 

Carroll 

Danville 

i 

' 

Korth  Danville 



11,  778 

10, 919                      1 

1 

1 

We,  the  undersigned,  a  board  of  State  canvassers,  do  hereby  certify  that  the  fore- 
going statement  is  correct. 

FEED.  W.  M.  HOLLIDAY, 

Governor. 
T.  T.  FAUNTLEROY, 

Secretary  of  the  CommonUh. 
JOHN  E.  MASSEY, 

Auditor  of  Public  Accounts, 
C.  M.  REYNOLDS, 

State  Treasurer. 
JAS.  G.  FIELD, 
/  Attorney- General. 

The  contestant  does  not  claim  in  his  notice  of  contest  that  he  was 
elected  a  Eepresentative  to  the  Forty-seventh  Congress,  but  that  he 
would  have  been  elected  but  for  certain  wrongs  of  which  he  complains. 
To  all  of  contestant's  allegations  the  contestee  interposed  a  general  as 
well  as  a  specific  and  particular  denial  and  challenged  the  proof. 

The  contestant  has  not  attempted  to  substantiate  by  proof  any  of  the 
grounds  of  contest  specified  in  his  notice  except  such  as  relate  to  the 
precincts  of  Danville,  Cascade,  Brosville,  Hall's  Cross-Roads,  and  Ring- 
gold, in  the  county  of  Pittsylvania ;  Charity  and  Gates's  Store,  in  Pat- 
rick County ;  and  Hillsville  and  Dalton's  Store,  in  the  county  of  Car- 
roll. 

He  has  offered  some  testimony,  which  has  been  duly  considered,  re- 
lating to  the 'precinct  of  Phillips's  Store,  Kester's,  Fancy  Gap,  and 
Smith's  Mill,  in  Carroll  County.  But  these  precincts  are  not  mentioned 
in  the  notice  of  contest,  and  the  depositions  relating  to  them  were  ob- 
jected to  for  that  reason  by  the  contestee,  and  are  inadmissible.  Be- 
sides, the  depositions  were,  in  disregard  of  the  contestant's  objections, 
taken  in  Carroll  County  by  a  Pittsylvania  County  notary,  who  had  no 
authority,  under  State  or  Federal  law,  to  take  them. 

If  all  the  demands  made  by  the  contestant  in  his  notice  of  contest 
respecting  the  precincts  to  which  his  proofs  relate  be  conceded,  the  re- 
sult will  be  as  follows : 

G.  C.  Cabeli.. 


Returned  vote 11,778 

Add  Charity 20 


11,798 


STOVELL    VS.    CABELL.  669 

Deduct. 

Danville •. 731 

Hall's  Cross-Roads 196 

Cascade 127 

Ringgold 242 

Brosville 167 

Gates's  Store 80 

Hillsville 77 

Dalton's  Store ^ 120 

1, 573 


10,225 


J.  T.  Stovall. 

Returned  vote 10,919 

Add  Charity 51 


Deduct. 


10,970 


Danville 585 

Hall's  Cross-Roada 143 

Cascade 79 

Ringgold 238 

Brosville 42 

Gates's  Store.... 37 

Hillsville 37 

Dalton's  Store 7 

1,126 

9,844 
Majority  for  G.  C.  Cabell,  381. 

Moreover,  if  instead  of  rejecting  the  entire  vote  of  Danville,  where 
the  contestee  received  a  majority  of  156  votes,  we  add  to  the  contest- 
ant's vote  the  550  ballots  which,  in  some  extraordinary  manner,  he 
claims  in  his  Orief,  but  not  in  his  notice  of  contest,  should  have  been 
excluded  on  account  of  double  registration,  the  contestee  would  still 
have  a  majority  ? 

We  will  examine  as  to  some  of  the  testimony  in  the  order  presented. 

DANVILLE,   PITTSYLVANIA  COUNTY. 

What  changes,  if  any,  are  to  be  made  in  favor  of  the  contestant  in 
the  returned  vote  of  the  town  of  Danville? 

The  contestant  charges  that  he  was  deprived  of  five  hundred  votes  in 
that  town  by  the  deliberate  and  arbitrary  misconduct  of  persons  acting 
in  the  interest  of  the  contestee,  with  the  purpose  of  defrauding  or  de- 
priving the  contestant  of  such  votes.  Under  this  general  charge  he 
makes  four  different  specifications. 

1.  He  asserts  that  an  organization  of  the  contestee's  political  friends, 
known  as  the  Hancock  and  English  Club  of  Danville,  by  systematic 
threats  and  menaces  of  proscription  in  business  and  in  social  relations 
against  the  contestant's  supporters,  intimidated  a  large  number  of 
voters  in  that  town  and  deterred  them  from  voting  for  the  contestant. 

2.  He  alleges  that  at  a  meeting  of  the  Danville  Tobacco  Association 
resolutions  were  submitted,  before  the  day  of  the  election,  to  the  effect 
that  members  of  that  association  would  not  bid  on  tobacco  offered  for 
jsale  at  public  auction  on  the  Danville  market  by  any  person  whose 


670  DIGEST  OF  ELECTION  CASES. 

avowed  purpose  it  was  to  vote  for  the  contestant ;  and  that,  although 
these  resolutions  were  not  adopted  by  the  association,  they  were  acted 
on,  not  only  by  its  members  in  their  refusal  to  bid  on  tobacco  so  offered, 
but  also  by  the  association  itself  in  the  removal  of  one  of  its  supervisors 
of  public  sales  because  of  his  persistence  in  supporting  the  contestant. 

3.  He  asserts  that  the  judges  of  election  and  challengers,  with  the  aid 
of  many  members  of  this  Hancock  and  English  Club,  who,  acting  in 
concert  as  friends  of  thecontestee,  formed  a  barrier  in  front  of  the  polls, 
deprived  three  hundred  colored  supporters  of  the  contestant  of  the  op- 
portunity to  vote,  by  the  following  devices : 

(1.)  By  means  of  this  barrier  formed  by  the  contestee's  friends  in  front 
of  the  polls  the  colored  supporters  of  the  contestant  were  excluded  from 
the  polls  for  some  time  in  the  morning,  after  the  opening  of  the  polls 
had  been  delayed  for  a  considerable  period  beyond  the  hour  fixed  by 
law. 

(2.)  These  voters  were  then  kept  waiting  while  the  judges  and  chal- 
lengers consumed  the  time  in  asking  them  unnecessary  and  silly  ques- 
tions, for  the  purpose  of  defeating  their  efforts  to  vote  for  the  contest- 
ant. 

(3.)  Meantime  the  friends  of  the  contestee  were  permitted  to  approach 
the  polls  by  an  entrance  at  the  rear  of  the  building,  and  to  vote  rapidly, 
without  challenge. 

(4.)  The  judges  and  challengers,  with  the  aid  of  a  police  force  friendly 
to  the  contestee,  compelled  the  contestant's  supporters  to  approach  the 
polls  singly  or  in  couples. 

(5.)  The  judges  and  challengers  required  supporters  of  the  contestant, 
whom  they  knew  to  be  regularly  registered  and  to  be  entitled  to  vote, 
and  who  held  their  tax-receipts  in  their  hands,  to  procure  at  other  pre- 
cincts certificates  that  they  were  not  registered  or  had  not  voted  there. 

(6.)  The  judges  of  election  required  supporters  of  the  contestant,  who 
had  recently  attained  the  age  of  twenty-one  years,  to  produce  their 
fathers  or  mothers,  or  to  do  some  other  impracticable  thing,  to  prove 
their  age,  instead  of  accepting  their  own  oaths,  as  required  by  law. 

(7.)  Meantime  the  judges  of  election  were  receiving  votes  from  the 
supporters  of  the  contestee  as  rapidly  as  possible — ^in  some  cases  from 
those  not  entitled  to  vote.  * 

4.  He  alleges  that  one  of  the  supervisors  of  election,  in  the  town  of 
Danville,  some  days  before  the  election,  took  possession  of  the  registra- 
tion books,  and  kept  them  in  his  possession,  so  as  to  hinder,  delay,  and 
prevent  transfers  of  registration  to  other  places,  to  which  voters  had 
removed. 

The  contestant  has  examined  several  witnesses,  whose  testimony,  if 
it  were  uncontradicted,  would  slightly  tend  to  establish  some  of  his  nu- 
merous averments  relating  to  the  Court-House  precinct  and  the  Grave's 
Warehouse  precinct,  in  the  town  of  Danville.  And  yet  two-thirds  of 
the  contestant's  witnesses,  who  testify  that  access  to  the  polls  was  diflB- 
cult,  state  that  they  were  crowded  off,  not  by  white  but  by  colored 
men. 

But  the  testimony  of  all  these  witnesses  sworn  for  the  contestant  on 
the  points  now  under  consideration  is  successfully  met  and  wholly  con- 
tradicted by  that  of  the  witnesses  produced  on  behalf  of  the  contestee. 
Contestee,  beyond  all  question,  is  entitled  to  his  majority  in  Danville. 

hall's  CEOSS-ROADS,  PITTSYLVANIA  COUNTY. 

The  contestant  asserts,  (1)  that  the  votes  of  many  legal  voters,  who 


STOVELL   VS.    CABELL.  671 

were  supporters  of  the  contestant,  were  rejected  at  the  precinct  of  Hall's 
Oross-Roads,  in  Pittsylvania  County,  although  they  held  their  tax  re- 
ceipts in  their  hands  when  they  olfered  to  vote ;  (2)  that  the  votes  of 
many  others  were  rejected  because  their  registration  had  been  trans- 
ferred to  Malmaison  instead  of  Hall's  Cross-Roads,  although  these  two 
names  were,  and  were  known  to  the  judges  to  be,  different  names  for 
the  same  precinct ;  and  (3)  that  separate  boxes  were  used  at  this  pre- 
cinct to  receive  the  ballots  of  white  and  colored  men ;  and  he  demands 
the  rejection  of  the  returns  of  this  precinct  as  fraudulent. 

On  the  first  of  these  points  the  contestant  offers  no  proof.  On  the 
second  he  presents  the  testimony  of  four  witnesses  tending  to  show  that 
two  votes  had  been  rejected  for  the  reason  assigned  in  the  notice  of  con- 
test, and  two  for  other  reasons.  But  the  contestee  presents  the  testi- 
mony of  twelve  witnesses  who  show  that  the  four  votes  were  rejected 
because  the  men  who  offered  them  had  not  been  registered  according 
to  law,  or  had  not  been  properly  transferred ;  that  no  discrimination 
was  made  between  the  voters;  that  the  same  questions  were  propounded 
to  every  man,  white  and  colored,  in  regard  to  his  qualifications;  that 
no  voter  of  either  party  or  color  was  improperly  refused  or  needlessly 
impeded  in  the  exercise  of  his  privilege ;  that  the  election  was  conducted 
with  perfect  impartiality,  and  that  the  contestant's  principal  witness, 
on  more  than  one  occasion  and  to  several  persons,  admitted  its  fairness. 

The  testimony  shows  that  two  boxes  had  been  used  since  the  period 
of  reconstruction,  without  objection  from  any  source. 

There  is  no  statute  which  expressly,  or  by  necessary  implication,  for- 
bids the  use  of  two  boxes  in  that  way.  The  only  question  is  whether 
their  use  interfered  with  the  purity,  freedom,  or  convenience  of  tne 
election.    That  it  did  not  is  incontestably  proven  by  the  testimony. 

CASCADE  PEECENCT,  COUNTY  OF  PITTSYLVANIA. 

The  contestant  insists  that  the  returns  from  the  precinct  of  Cascade, 
in  the  county  of  Pittsylvania,  are  to  be  rejected,  because  one  of  the 
judges  of  election  was  detected  in  the  act  of  substituting  ballots  in  favor 
of  the  contestee  in  place  of  ballots  delivered  to  him  in  favor  of  the 
contestant. 

In  support  of  this  claim  he  offers  the  deposition  of  a  witness,  who  says : 

Q.  3.  Did  yon  see  on  that  day  any  one  of  the  judges  of  election  suppress  a  colored 
voter's  ballot  and  substitute  in  the  place  of  it  another  ballot  which  the  colored  voter 
had  not  given  him  ?  If  you  did,  give  the  name  of  the  judge  who  did  so,  and  relate 
the  occurrence  fully. 

(Objected  to  as  suggestive.) 

A.  Yes,  sir;  Mr.  James  E.  Adams  was  the  judge  who  did  it.    I  saw  a  colored  man 

five  Mr.  Adams  his  vote  and   Mr.    Adams  held    it  in  hand  and   changed  it  for  a 
>emocratic  ticket,  and  put  the  Democratic  ticket  in  the  ballot-box. 
Q.  4.  What  was  the  name  of  the  colored  voter  T— A.  I  don't  know  what  his  name 
was. 

Q.  5.  Did  you  make  any  outcry  about  it  at  the  time  ?  State  what  yon  did  and  said 
about  it. — A.  Yes,  sir.  Mr.  Adams  handed  the  Democratic  ticket  to  Mr.  Earlesto  put 
in  the  box,  and  I  said  then  to  them,  "That  ticket  is  not  voted."  Mr.  Earles  then 
said,  "  You  are  too  late,"  and  let  loose  the  ticket,  and  shoved  it  down  into  the  ballot- 
box. 

This  statement  is  disproved  by  the  testimony  of  four  witnesses,  two 
of  whom  testify  as  follows : 

James  E.  Adams: 
Q.  Jesse  Strange,  one  of  the  supervisors  of  election  at  Cascade,  has  8tat«d,  ia 
a  deposition  given  in  this  cause,  that  you,  James  E.  Adams,  took  a  ticket  from  a  col- 
ored voter  and  substituted  for  it  a  Democratic  ticket,  -and  that  Mr.  Earles  dropped  it 


672  DIGEST  OP  ELECTION  CASES. 

in  the  box  instead  of  the  ticket  handed  in  by  the  colored  voter.     Is  that  statement 
true  or  not? — A.  It  is  not  true;  nothing  of  the  kind  occurred. 

U.  W.  Earles  : 

Q.  Were  you  present  on  the  2d  day  of  November,  1880,  at  the  election  held  on  that 
day  at  Cascade!  If  yes,  what  connection,  if  any,  had  you  with  the  election  ? — A.  I 
was  present  on  said  day,  and  was  one  of  the  judges  of  the  election. 

Q.  Was  that  [election  fairly  conducted,  and  all  persons  legally  entitled  allowed  to 
vote? — A.  The  said  election  was  fairly  conducted,  and  all  persons  legally  entitled  al- 
lowed to  vote. 

Q.  Jesse  Strange,  one  of  the  supervisors  of  el  ection  at  Cascade  precinct  on  said  day, 
has  stated  in  a  deposition  given  in  this  cause  that  James  E.  Adams,  one  of  the  judges, 
took  a  colored  man's  ballot  and  substituted  for  it  a  Democratic  ticket  and  handed  it  to 
you,  and  that  you  put  it  in  the  ballot-box.     Is  thattrue  or  not  ?— A.  It  is  not  true. 

EINGGOLD  PRECINCT,  PITTSYLVANIA  COUNTY. 

The  contestant  demands  the  rejection  of  the  returns  of  the  precinct 
of  Ringgold,  in  the  county  of  Pittsylvania,  on  the  grounds  (1)  that  sepa- 
rate ballot-boxes  were  used  for  white  and  colored  voters;  (2)  that 
many  votes  offered  for  the  contestant  were  rejected  by  the  judges  of 
election  on  the  pretext  that  the  voters  had  not  personally  paid  their 
capitation  tax,  which  pretext,  he  says,  was  furnished  by  the  peculiar 
form  in  which  the  county  clerk,  by  the  advice  of  the  friends  of  the  con- 
testee,  drew  the  tax  receipts;  and  (3)  that  one  of  the  judges  of  election 
was  seen  to  place  the  ballot  of  a  voter  in  his  pocket  instead  of  the  bal- 
lot-box. 

This  demand  for  the  rejection  of  the  entire  return  is  made  twice  in 
the  notice  of  contest,  and  no  other  relief  in  connection  with  this  precinct 
is  then  suggested.  The  vote  stood  for  Cabell  242,  and  for  Stovall  238. 
The  rejection  of  the  return  would,  therefore,  yield  to  the  contestant  a 
gain  of  four  votes. 

The  use  of  two  ballot-boxes  affords  no  valid  ground  for  the  rejection 
of  this  return. 

But  the  contestant  asserted,  in  argument,  that  28  votes  were  illegally 
rejected  on  the  pretext  that  the  taxes  of  the  electors  had  not  been  paid 
by  themselves,  and  he  claimed  28  additional  votes  on  that  account.  If 
this  claim,  being  established,  could  possibly  change  the  result,  while  we 
might  not  be  able,  without  difficulty,  to  reach  a  unanimous  conclusion 
that  no  votes  were  illegally  rejected  on  the  ground  alleged,  we  should 
be  compelled  to  report  that  so  many  as  28  votes  were  not  so  re- 
jected. But  in  view  of  the  fact  that  the  concession  of  all  these  votes 
to  the  contestant  would  still  leave  the  contestee  a  majority  of  831,  and 
of  the  obligation  which,  if  this  change  be  made,  will  constrain  us,  for 
still  stronger  reasons,  to  exclude  the  vote  of  Shockoe  precinct,  where 
the  contestant  had  a  majority  of  65,  and  thereby  raise  the  contestee's 
aggregate  majority  to  896,  we  have  concluded  not  to  disturb  the  returns 
of  either  of  these  precincts. 

The  charge  that  one  of  the  judges  placed  the  ballot  of  a  voter  in  his 
pocket  is  completely  disproved.  And  if  it  were,  that  fact  would  not 
authorize  the  exclusion  of  the  entire  vote  of  the  precinct. 

The  contestant,  in  his  brief,  presents  a  demand,  connected  with  the 
claim  of  28  votes  just  considered,  to  which  no  reference  is  made  in  his 
notice  of  contest.  It  is  a  demand  that  175  additional  votes,  including 
the  28,  be  allowed  him  in  the  entire  county  because  refused  on  the 
ground  that  the  electors  had  not  paid  their  own  taxes.     He  says — 

(1)  That  he  has  proven  that  "28  votes  at  this  precinct  were  unlawfully  rejected 
because  of  the  manner  in  which|the  receipts  for  the  capitation  tax  were  written  "  ;  (2) 
that  Sheriff  Overby  testified  that  "  these  receipts  were  issued  to  the  number  of  150  or 


STOVELL    VS.    CABELL.  673 

200  colored  men"  for  the  entire  county;  and  (3)  that  inaauiuch  as  one  of  the  Ringgold 
judges  of  election  had  said  that  Judge  Aiken,  of  Danville,  had  said  that  these  receipts 
■were  unlawful,  it  was  to  be  inferred  that  150  or  200  votes  offered  for  the  contestant  in 
Pittsylvania  County  were  unlawfully  rejected  because  of  the  form  of  the  capitation-tax 
receipts.  And  thereupon,  without  jiroof  of  the  offer  and  rejection  of  these  150 or  200 
votes,  and  without  any  averment  to  that  effect  in  his  notice  of  contest,  he  seeks  to 
appropriate  the  average  of  150  and  200 — that  is  to  say,  175  votes. 

It  is  obvious  that  we  could  fiud  no  excuse  for  complying  with  a  de- 
mand resting  on  such  shadowy  grounds.  There  is  no  legal  evidence  of 
the  alleged  facts.  Hearsay  and  inference  cannot  be  substituted  for 
proof. 

BROSVILLE  PRECINCT,  COUNTY  OF  PITTSYLVANIA. 

The  contestant  asserts,  in  the  notice  of  contest,  that  at  the  pre- 
cinct of  Brosville,  in  the  county  of  Pittsylvania,  many  illegal  votes  for 
the  contestee  were  received  and  many  legal  votes  for  the  contestant 
rejected. 

He  asks  for  no  relief.  The  testimony  completely  disproves  his  aver- 
ments.   There  is  not  the  slightest  reason  to  interfere  with  this  poll. 

DOUBLY  REGISTERED  VOTERS   IN   PITTSYLVANIA  COUNTY. 

The  contestant,  in  his  brief  and  argument,  claims  550  additional  votes 
in  the  county  of  Pittsylvania,  on  the  ground  that  550  of  his  supporters, 
who  were  registered,  each  at  two  or  more  precincts,  were  not  permitted 
to  vote.  This  demand  is  not  suggested  in  the  notice  of  contest,  and 
therefore  cannot  be  considered  by  us,  and  if  it  were  necessary  would 
be  rejected  for  that  reason,  nor  is  it  sustained  bj'^  the  proofs. 

The  jjroof  on  which  this  claim  is  based  is  found  in  the  following  tes- 
timony of  James  Wood  : 

Q.  26.  You  are  shown  a  copy  of  theDailj'  News,  a  paper  published  in  Danville,  Va., 
and  the  copy  shown  you,  dated  Tuesday,  November  2,  1880.  It  contains  what  pur- 
ports to  be  a  letter  from  Attorney-General  Field,  of  Virginia,  in  answer  to  a  letter  ad- 
dressed to  him  by  Mr.  E.  A.  Catliu,  Democratic  supervisor  of  election,  held  on  thatday. 
In  that  issue  of  that  paper,  and  in  the  article  jirofessing  to  recite  Attorney-General 
Field's  letter  to  E.  A.  Catliu,  as  above,  occursjthe  following  :  "  Answer  to  second  ques- 
tion :  Any  person's  vote  may  be  objected  to  on  the  day  of  the  election,  and  if  it  shall 
appear  that  his  name  is  improperly  on  the  registration  books  his  vote  should  be  rejected. 
If  it  appears  that  a  person  has  registered  at  two  places  in  the  same  county,  without 
a  transfer,  his  vote  should  be  rejected."  Did  'not  the  Democratic  aupenisor  and  chal- 
lenger at  that  election,  November  2, 1880,  act  upon  thatopinion  as  if  it  had  read  that  thesame 
name  appeared  at  two  precincts,  without  reference  to  the  identity  of  theperson  t — A.  Thattoas 
my  understanding  of  their  ruling. 

Q.  29.  If  the  construction  put  upon  Attorney-General  Field's  letter,  above  quoted,  by  the 
Democratic  suvrvisors  and  challenqers  of  Danville  had  been  generally  acted  upon  at  every 
precinct  in  Danville  and  in  Pittsylvania  County,  how  many  colored  voters,  in  your  opinion, 
would  have  been  disfranchised  in  Danville  and  Pittsylvania  County  at  that  election  f 

(Objected  to,  as  calling  for  the  mere  opinion  of  the  witness  upon  a  purely  hypothet- 
ical case,  which  is  not  evidence,  and  for  an  opinion  which  has  about  as  much  bearing 
upon  this  case  as  if,  instead  of  Pittsylvania,  it  had  been  asked  with  reference  to 
Babylon.) 

a'.  In  my  opinion  it  would  have  disfranchised  a  large  number,  probably  five  or  six  hundred. 

This  witness,  it  appears  "  understood  "  that  at  one  of  the  30  precincts 
of  Pittsylvania  County  every  person  who  offered  to  vote  in  a  name 
which  was  registered  at  two  precincts  was  denied  the  right,  even  when 
there  were  two  different  voters  of  the  same  name,  and  he  is  of  the  opin- 
ion that  if  the  same  thing  was  done  at  each  of  the  other  29  precincts 
then  probably  500  or  600  colored  men  were  disfranchised  in  the  entire 
county. 

H.  Mis.  35 43 


674  DIGEST  OF  ELECTION  CASES. 

We  should  not  feel  warranted  in  allowing  the  contestant  any  addi- 
tional votes  upon  this  proof  at  the  particular  precinct  to  which  it  refers^ 
even  if  the  pleadings  permitted  him  to  claim  them.  But  if  it  be  true  that 
the  judges  at  the  Gourt-House  precinct  in  Danville  placed  upon  the  at- 
torney-general's letter  the  erroneous  construction  which  the  witness  un- 
derstood them  to  place  upon  it,  we  are  not  at  liberty  to  assume,  without 
proof,  that  the  judges  at  the  other  29  precincts  misinterpreted  the  letter 
in  the  same  way.  Nor,  assuming  it  to  be  true  that  the  same  erroneous 
construction  was  placed  upon  the  letter  in  all  the  precincts  of  the  county, 
can  we  receive  the  opinion  of  this  witness  as  proof  of  the  fact  that  it 
caused  a  disfranchisement  of  500  or  600  colored  voters  in  the  county. 
It  does  not  appear  that  expert  testimony  from  this  witness  is  admissi- 
ble to  establish  that  fact.  But  if  the  fact  were  established,  we  could 
not,  upon  this  record,  assume  or  conclude  that  the  500  or  600  disfran- 
chised colored  men  were  all  supporters  of  the  contestant.  There  is  no 
proof  to  justify  contestant's  demands. 

The  census  of  1880,  showing  the  population  of  Danville  to  have  been 
7,626,  satisfies  us  that  the  establishment  of  this  claim  by  proof  was  an 
impossibility.  For  if  of  these  550  disfranchised  colored  men  328  were, 
as  the  contestant  asserts,  voters  of  the  town  of  Danville,  then  the  voters 
of  that  town  numbered  about  1,983,  and  constituted  more  than  26  per 
cent,  of  the  entire  population.  By  the  ordinary  rule,  reckoning  the  pop- 
ulation of  Danville  at  even  so  much  as  8,000  on  2d  i!«rovember,  1880, 
there  could  hardly  have  been  over  1,600  voters  if  all  were  qualified  ac- 
cording to  law.  The  proof  shows  that  1,324  persons  voted  at  Danville 
on  2d  November,  1880 ;  that  311  persons  were  disqualified  by  non-pay- 
ment of  tax  and  conviction  of  crime,  and  therefore  did  not  vote,  making 
1,635,  which  accounts  in  a  satisfactory  way,  it  seems  to  us,  for  the  vot- 
ing population  of  that  town.  If,  however,  we  were  to  adopt  the  views 
of  contestant,  and  add  to  the  1,635  voters  found  above  328,  which  he 
claims  were  prevented  from  voting  for  him,  and  some  ten  or  twelve  more 
who  are  shown  by  the  testimony  to  have  desired  to  vote  for  coutestee, 
but  were  prevented  by  the  crowd  from  doing  so,  we  would  find  our- 
selves confronted  with  the  fact  that  there  were  in  Danville  on  said  2d 
November,  1880,  about  1,983  voters  out  of  a  population  of  less  than 
8,000,  a  majority  of  whom,  according  to  the  census  returns,  were  fe- 
males. The  fact  is  the  vote  at  Danville  on  the  day  named  was  quite  a 
faU  vote,  the  population  and  other  facts  considered. 

PETEES'S  CREEK,  NUNN'S  STOBE,   GATES'S  STORE,  PATRICK  COUNTY. 

The  contestant  asserts  in  his  notice  that  at  the  precincts  of  Peters's 
Creek,  Nunn's  Store,  and  Gates's  Store,  in  the  county  of  Patrick,  the 
judges  of  election  opened  the  ballot-boxes  during  the  progress  of  the 
election,  and  examined  and  counted  the  votes  contrary  to  law,  and  he 
demands  that  the  returns  of  these  three  precincts  be  rejected  by  the 
House  of  Representatives. 

But  he  has  offered  no  proof  in  support  of  this  charge,  except  as  to 
the  precinct  of  Gates's  Store.  He  produced  two  witnesses  to  impeach 
the  returns  of  this  precinct.  Their  testimony  completely  refutes  the 
charge  instead  of  proving  it. 

But  if  that  were  not  so,  their  depositions  are  not  admissible  in  evi- 
dence, because,  like  the  rest  of  the  contestant's  Patrick  County  deposi- 
tions, they  were  taken  before  the  county  clerk,  who  had  no  lawful  author- 
ity to  take  them,  and  the  contestee  objected  before  they  were  taken. 


STOVELL  VS.  CABELL.  675 

CHARITY  PRECINCT,  PATRICK  COUNTY. 

The  contestant,  in  liis  notice  of  contest,  asserts  that  the  county  can- 
vassers of  Patrick  County  illegally  rejected  the  returns  of  Charity  pre- 
cinct, and  demands  that  the  returned  vote  of  this  precinct  be  counted. 

But  his  own  proof  shows  that  the  only  return  made  by  the  judges  of 
election  of  the  precinct  was  a  return  of  the  vote  for  electors  of  Presi- 
dent and  Vice-President,  which  return  wholly  omits  the  votes  cast  for 
the  Eepublican  electoral  candidates.  It  shows  that  the  judges  of  elec- 
tion made  no  return  at  all  of  the  vote  for  Kepresentative  in  Congress. 
The  omission  of  the  county  canvassers  to  canvass  votes  not  returned  was 
not  illegal.  On  the  contrary,  the  canvass  of  votes  not  returned  would 
have  been  a  lawless  proceeding. 

If  it  were  true,  as  the  contestant  asserts  in  his  brief,  that  51  votes 
were  cast  for  the  contestant,  and  only  20  for  the  contestee,  at  this  pre- 
cinct, the  contestant  might  have  availed  himself  of  the  net  result  by 
proper  averments  in  his  notice,  duly  supported  by  legal  proof.  But  he 
made  no  such  averments.  His  only  averment  was  that  the  county  can- 
vassers illegally  rejected  the  return ;  and  that  averment  was  not  true. 
Nor  is  the  testimony  taken  on  the  subject  before  the  county  clerk  ad- 
missible. 

CARROLL  COUNTY. 

The  contestant,  in  his  notice,  demands  the  rejection  of  the  entire  vote 
of  Carroll  County.  But  there  is  no  proof  to  justify  any  modification  of 
the  official  returns  from  this  county. 

SHOCKOE  PRECINCT,  PITTSYLVANIA  COUNTY. 

The  contestee,  in  his  answer,  demands  the  rejection  of  the  vote  of 
Shockoe  precinct,  in  Pittsylvania  County,  where  the  contestant  received 
as  reported  a  majority  of  65  votes.  We  might  well  exclude  this  precinct 
from  the  count  by  reason  of  the  wrongful  and  illegal  conduct  practiced 
by  friends  of  contestant  at  that  point,  but  for  reasons  already  suggested 
we  have  concluded  not  to  disturb  the  return,  as  we  can,  after  thorough 
examination  of  all  the  facts  and  circumstances  connected  with  the  elec- 
tion in  the  fifth  Congressional  district  of  Virginia,  on  2d  November,  1880, 
sustain  the  contestee,  George  C.  Cabell,  in  his  position  by  at  least  his 
returned  majority  of  859  votes,  and  report  the  accompanying  resolutions: 

1.  Besolved,  That  John  T.  Stovall  was  not  elected  to  a  seat  in  the 
Forty-seventh  Congress  from  the  fifth  Congressional  district  of  Vir- 
ginia, and  is  not  entitled  thereto. 

2.  Resolved,  That  George  C.  Cabell  was  duly  elected  to  a  seat  in  the 
Forty-seventh  Congress  from  the  fifth  Congressional  district  of  Vir- 
ginia, and  is  entitled  to  represent  the  same. 


676  DIGEST    OF    ELECTION    CASES. 

S.  P.  BAYLEY  vs.  JOHN  S.  BARBOUR. 

Eighth  GoNaEESSioNAL  District  of  Virginia. 

Iq  this  case  the  only  ground  of  contest  insisted  on  was  that  contestee  at  the  time  of 
the  election  was  ineligible  and  disqualified  to  be  the  Eepresentative  of  said  dis- 
trict and  State,  because  he  was  not  a  iona  fide  resident  or  inhabitant  of  Virginia. 

Held,  That  contestee  was  in  fact  at  the  time  and  before  the  election  an  inhabitant  of 
Virginia,  and  was  duly  elected. 


April  12, 1882. — Mr.  Wait,  from  the  Committee  on  Elections,  sub- 
mitted the  following 

BE  PORT: 

The  Committee  on  Elections,  to  whom  was  referred  the  above  contested- elec- 
tion case^  halving  had  tlie  same  under  consideration^  beg  leave  to  submit 
the  following  report : 

This  case  comes  before  the  committee  upon  the  application  of  S.  P. 
Bayley,  who  contests  the  right  of  John  S.  Barbour  to  a  seat  in  this  House 
from  theeighth  Congressional  district  of  Virginia,  contending  that  upon 
the  grounds  set  out  in  the  notice  of  contest  the  said  John  S.  Barbour 
was  not,  and  the  said  contestant  S.  P.  Bayley  was,  duly  elected  said 
Kepresentative  for  said  district  and  State. 

The  notice  of  contest  contained  sixseparate  and  distinct  grounds  and 
charges. 

The  second  and  third  grounds  were,  that  large  numbers  of  persons 
who  were  not  qualified  according  to  law  were  permitted  to  vote  at  the 
election  held  for  said  Representative  on  November  2, 1880,  and  that  such 
illegal  votes  were  received,  counted,  and  returned  for  the  said  John  S. 
Barbour  for  Eepresentative. 

The  fourth  allegation  was  that  large  numbers  of  lawful  voters  were 
prohibited  from  voting,  which  said  votes,  had  they  been  received,  would 
have  been  cast  for  the  contestant. 

The  fifth  and  sixth  allegations  charged  that  large  numbers  of  lawful 
voters,  by  intimidation  and  gross  frauds  and  abuses,  were  prevented 
from  casting  their  votes  for  the  said  contestant. 

In  disposing  of  these  grounds  of  contest  it  is  only  necessary  to  state 
that  there  was  no  evidence  whatever  offered  in  support  of  them,  and 
that  there  was  no  contention  before  the  committee  that  they  were  in 
point  of  fact  true.  Having  been  abandoned,  it  appears  from  the  record 
that  of  the  27,441  legal  votes  cast  at  said  election  the  said  Bayley,  con- 
testant, received  only  9,177.  This  leaves  for  the  committee's  consider- 
ation the  sole  question  raised  by  the  first  ground  set  out  in  the  notice  of 
contestant,  to  wit: 

That  the  said  John  S.  Barbour,  at  the  time  of  said  election  for  such 
Eepresentative,  was  ineligible  and  disqualified  tobe  the  Eepresentative 
of  said  district  and  State. 

The  said  ineligibilty  and  disqualification  consists  in  this,  that  the 
said  John  S.  Barbour  was  not  at  the  time  aforesaid  either  a  banafide  res- 
ident or  inhabitant  of  said  State  of  Virginia. 


BAYLEY    VS.    BAKBOUR.  677 

When  the  contestant  abandoned  the  grounds  of  contest  above  set 
forth  he  at  the  same  time  relinquished  all  right  or  claim  to  the  seat  of 
the  sitting  member,  even  in  the  event  that  the  same  should  be  declared 
vacant  on  the  ground  of  the  constitutional  ineligibility  and  disqualifica- 
tion of  its  occupant. 

In  the  case  as  made  up  and  presented  to  the  committee  the  contest- 
ant has  only  that  interest  in  it  that  is  possessed  by  every  other  elector 
in  the  district ;  yet  there  is  no  petition  or  memorial  from  any  body  of  the 
electors  of  the  district  addressed  to  Congress  setting  forth  any  objec- 
tion to  the  right  of  Mr.  Barbour  to  a  seat  in  the  House  to  which  he  has 
been  elected  on  the  alleged  ground  that  he  is  not  possessed  of  those 
qualifications  which,  by  the  Constitution  of  the  United  States,  are  in- 
dispensable to  the  holding  of  a  seat  in  Congress. 

Both  upon  principle  and  precedent  the  committee  think  that  those 
questions  which  relate  solely  to  the  qualifications  of  members  of  Con- 
gress should  be  more  appropriately  brought  to  the  attention  of  Congress 
by  a  memorial  of  the  electors  who  are  alone  interested  in  the  result. 
This  practice  could  work  no  wrong,  and  would  be  productive  of  much 
good  in  preventing  troublesome  and  gratuitous  contests  which  might  be 
inspired  by  motives  other  than  the  interests  of  the  electors. 

The  subject  being  one  of  great  importance,  however,  they  have  con- 
sidered it  on  the  testimony  adduced,  which  is  solely  upon  the  question 
of  the  qualification  of  Barbour  under  the  Constitution  of  the  United 
States. 

In  support  of  the  voluntary  contest  thus  made  by  S.  P.  Bayley  against 
the  eligibility  of  the  sitting  member,  he  proceeded  to  take  the  testimony 
of  three  witnesses  in  the  city  of  Alexandria,  namely,  George  Duffey, 
Augustus  F.  Idensen,  and  Jno.  S.  Barbour,  the  last-named  being  the 
returned  member  himself,  the  ol>ject  being  to  show  that  the  said  Bar- 
bour was  not  a  bana  fide  inhabitant  of  the  State  of  Virginia,  as  required 
by  the  Constitution  of  the  United  States.  Mr.  Duffey  was  the  commis- 
sioner of  revenue  for  the  city  of  Alexandria,  and  Mr.  Idensen  was  clerk 
to  the  State  assessor  of  that  city  for  the  year  1880.  The  contestee,  Bar- 
bour, on  his  own  behalf,  took  no  testimony,  but  submitted  the  case  upon 
the  evidence  of  the  contestant. 

Duffey  testifies  that  it  was  his  duty  to  assess  all  real  and  personal 
properties,  incomes,  licenses,  &c.,  also  the  annual  capitation  tax  pre- 
scribed by  law  upon  all  male  inhabitants  of  the  State  abiding  in  the 
city  of  Alexandria  over  twenty-one  years  of  age  at  the  time  of  the  as- 
sessment. 

That  the  said  Barbour  had  no  real  property  in  the  city  of  Alexandria, 
but  that  the  property  of  his  wife  situated  there  was  assessed  to  her  on 
the  property  books  as  an  Alexandrian,  the  law  requiring  the  residence 
of  the  owner  to  be  given.  Idensen  testifies  that  this  was  changed  in 
1880,  when  Mrs.  Barbour,  after  the  election,  was  put  down  as  a  resident 
of  Washington,  D.C.,  when  he,  as  the  assessor's  clerk,  knew  that  Jno. 
S.  Barbour  was  an  actual  resident  in  the  city,  and  so  stated  in  his  dep- 
osition. Mr.  Barbour  testifies  that  he  was  a  native  of  the  State  of 
Virginia;  had  always  been  a  citizen  of  said  State ;  never  claimed  to  have 
lived  elsewhere  in  a  permanent  sense,  or  to  have  exercised  citizenship  in 
any  other  State  or  Territory ;  that  his  post-office,  business  headquarters, 
residence  required  by  statute  for  the  service  of  legal  process  upon  him, 
were  all  in  the  city  of  Alexandria,  and  within  the  limits  of  said  State, 
and  that  while  he  had  a  temporary  winter  residence  in  the  city  of  Wash- 
ington, he  had  taken  a  house  in  Alexandria,  with  his  family,  in  Septera- 


678  DIGEST    OF    ELECTION    CASES. 

ber,  1S80,  and  was  so  actually  residing  at  the  date  of  the  Congressional 
election  in  November,  1880,  and  subsequently. 

The  code  of  Virginia,  ck.  166,  sec.  7,  which  provides  for  the  manner  of 
serving  process  against  cori)orations,  says : 

It  shall  be  sufficient  to  serve  any  process  against  or  notice  to  a  corporation  on  its 
mayor,  rector,  president,  or  other  chief  officer,  or  in  his  absence  from  the  county  or 
corporation  in  which  he  resides,  &c.,  *  *  »  and  service  on  any  person  under  this 
section  shall  be  in  the  county  or  corporation  in  which  he  resides ;  and  the  return  shall 
show  this,  and  state  on  whom  and  when  the  service  was,  otherwise  the  service  shall 
not  be  valid. 

Under  this  statute  service  of  process  was  habitually  made  upon  John 
S.  Barbour,  as  president  of  the  Virginia  Midland  Railway,  as  a  resident 
of  Alexandria. 

That  in  July  previous  to  his  nomination  for  Congress  he  had  declined 
to  be  listed  by  the  enumerator  of  Washington  City  as  an  inhabitant  of 
that  city,  but  then  stated  that  he  was  an  inhabitant  of  Virginia. 

That  when  traveling  absent  from  the  State  of  Virginia  he  invariably 
registered  himself  as  from  Virginia. 

That  at  the  time  of  the  election  and  before  he  was  actually  residing 
in  Alexandria,  without  any  intention  of  removing  therefrom  perma- 
nently. It  was  contended  on  behalf  of  the  contestant  that  although 
John  S.  Barbour  was  an  actual  resident  of  the  city  of  Alexandria,  Va., 
within  said  district,  at  and  before  the  time  of  the  election,  he  was  not 
an  inhabitant  within  the  meaning  of  the  constitutional  requirements  to 
qualify  him  as  a  member  of  Congress. 

In  support  of  this  view  the  case  of  John  Bailey  (Clark  and  Hall's 
Contested  Election  Cases,  p.  411)  was  relied  upon.  Bailey  was  chosen  a 
member  of  Congress  from  the  State  of  Massachusetts  on  the  8th  day  of 
September,  1823,  at  which  time  he  was  actually  residing  in  the  city  of 
Washington,  in  the  capacity  of  clerk  in  the  State  Department.  On  the 
1st  day  of  October,  1817,  Bailey,  who  was  at  that  time  a  resident  of 
Massachusetts,  was  appointed  by  the  Secretary  of  State  a  clerk  in  the 
Department  of  State,  and  immediately  repaired  to  Washington,  and 
entered  on  the  duties  of  his  appointment.  He  continued  to  reside  in 
the  city  from  that  time  with  his  family — having  in  the  mean  time  mar- 
ried— in  the  capacity  of  a  clerk  in  the  Department  of  State,  until  the 
21 8t  day  of  October,  1823,  subsequent  to  the  date  of  his  election,  at  which 
time  he  resigned  his  appointment.  Upon  the  petition  of  certain  citi- 
zens and  electors  of  the  Norfolk  district,  in  the  State  of  Massachusetts, 
the  question  of  his  eligibility  and  qualification  under  the  Constitution 
was  brought  to  the  attention  of  Congress,  and  it  was  contended  on  be- 
half of  Bailey  that,  although  he  had  been  from  the  time  of  his  appoint- 
ment in  1817  up  to  and  subsequent  to  his  election  to  Congress  a  resi- 
dent of  Washington,  he  had  retained  his  citizenship  in  the  State  of 
Massachusetts,  and  by  virtue  of  this  citizenship  it  was  contended  that 
within  the  constitutional  requirement  he  was  qualified  as  a  member  of 
Congress  from  that  State.  The  committee  considered  at  some  length 
the  distinction  between  citizenship  and  inhabitancy,  and  their  report, 
which  was  approved  by  Congress,  against  the  eligibility  of  Bailey  as  a 
Congressman  was  based  upon  these  distinctions.  It  was  held  that  be- 
ing a  citizen  of  the  State,  granting  that  Bailey  was  such,  but  residing 
permanently  elsewhere  did  not  satisfy  the  constitutional  requirements 
necessary  to  make  him  eligible  as  a  member  of  Congress.  The  commit- 
tee say  that  "the  word  *  inhabitant'  comprehends  a  simple  fact — locality 
of  existence ;  that  'citizen'  comprehends  a  combination  of  civil  privi- 
leges, some  of  which  may  be  enjoyed  in  any  of  the  States  of  the  Union." 


BAYLEY    VS.    BARBOUR.  679 

The  case  of  Barbour  differs  materially  from  that  of  Bailey  ia  this,  that 
not  ouly  had  Barbour  continued  to  be  a  citizen  of  the  State  of  Virginia, 
but  that  he  had  always  held  his  legal  residence  in  said  State  as  herein- 
above recited.  Added  to  that  was  the  fact  that  previous  to  his  election 
as  a  member  of  Congress  from  the  eighth  Congressional  district  of 
Virginia  he  had  removed  to  said  State  and  had  become  an  actual  in- 
habitant thereof,  residing  there  without  any  intention  of  permanently 
removing,  whereas  Bailey  was,  when  elected,  an  actual  inhabitant  and 
resident  of  the  District  of  Columbia,  not  claiming  a  residence  or  inhabi- 
tancy actually  in  the  State  of  Massachusetts,  except  constructively 
through  and  by  virtue  of  his  citizenship,  which  he  contended  he  had 
never  renounced  in  said  State. 

It  was  contended  further  by  the  contestant  in  this  case  that  the  elect- 
ive franchise  in  Virginia  was  one  of  the  essentials  of  inhabitancy,  and 
that  under  the  local  laws  of  the  State  of  Virginia  a  residence  of  twelve 
mouths  within  the  State,  and  a  residence  of  three  months  next  preceding 
the  election  in  the  county,  city,  or  town  where  the  person  offers  to  vote, 
was  a  requisite  qualification  of  an  elector,  and  that  with  these  requi- 
site qualifications  a  registration  was  also  necessary ;  that  John  S.  Bar- 
bour had  never  registered  as  a  voter,  and  therefore  he  was  not  an  in- 
habitant within  the  contemi)lation  of  the  Constitution. 

It  was  contended  that  the  word  "inhabitant"  embraces  citizenship; 
that  an  inhabitant  must  be  entitled  to  all  the  privileges  and  advantages 
conferred  by  the  laws  of  Virginia,  and  that  the  elective  franchise  alone 
confers  these ;  therefore  an  inhabitant  must  have  a  right  to  vote,  and 
further,  that  the  burdens  of  inhabitancy  were  predicated  upon  the  right 
to  vote. 

In  answer  to  this  position,  without  deeming  it  necessary  upon  the 
facts  of  this  case  to  enter  into  the  constitutional  signification  of  inhabit- 
ancy, it  is  only  necessary  to  say  that  the  right  to  vote  is  not  an  essen- 
tial of  inhabitancy  within  the  meaning  of  the  Constitution,  which  is 
apparent  from  an  inspection  of  the  Constitution  itself.  In  Article  I, 
section  2,  the  electors  for  members  #  Congress  "  shall  have  the  quali- 
fications requisite  for  electors  of  the  most  numerous  branch  of  the  State 
legislature,"  but  in  the  succeeding  section,  providing  for  the  qualifica- 
tions of  members  of  Congress,  it  is  provided  that  he  shall  be  an  inhabit- 
ant of  the  State  in  which  he  shall  be  chosen.  It  is  reasonable  to  con- 
clude that,  if  the  elective  franchise  was  an  essential,  the  word  "elector" 
would  have  been  used  in  both  sections,  and  that  it  is  not  used  is  con- 
clusive that  it  was  not  so  intended. 

In  the  case  of  Philip  Barton  Key  (Clark  and  Hall's  Contested  Election 
Cases,  p.  224),  who  wa$?  elected  a  member  of  Congress  from  Maryland 
on  the  Gth  day  of  October,  1806,  and  who  was  seated  as  such,  the  facts 
are  these :  Mr.  Key  was  an  inhabitant  of  the  District  of  Columbia,  and 
in  ifovember,  1805,  he  purchased  about  one  thousand  acres  of  land  in 
Montgomery  County,  Maryland,  about  fourteen  miles  from  Georgetown; 
that  some  time  in  the  summer  of  1806  he  caused  a  dwelling-house  to  be 
erected  on  said  lands,  into  which  he  removed  with  his  family  on  the 
18th  September,  1806;  that  he  was  resi<iing  in  said  house,  which  was 
only  partially  completed,  from  that  time  up  to  the  20th  of  October, 
1806,  when  he  removed  back  with  his  family  to  his  seat  in  the  District 
of  Columbia,  where  he  remained  till  about  the  28th  of  July,  1807,  when 
they  again  removed  to  his  estate  in  Montgomery  County,  where  they 
remained  till  the  20th  of  October,  1807,  when  they  again  returned  to 
his  seat  in  the  District  of  Columbia.  He  was  only  living  and  inhabit- 
ing within  his  said  district  in  Maryland  for  the  period  of  little  upwards 


680  DIGEST    OF   ELECTION    CASES. 

of  a  month,  during  which  time,  to  wit,  on  the  6th  clay  of  October,  1806, 
the  election  took  place,  at  which  he  was  returned  as  a  Eepresentative 
to  Congress  from  said  district.  Notwithstanding  this  short  residence, 
and  the  fact  that  Mr.  Key,  before  his  removal  to  Maryland,  had  been 
confessedly  a  citizen  and  inhabitant  of  the  District  of  Columbia,  it  was 
decided  by  Congress  that  he  was  eligible  and  qualified  under  the  Con- 
stitution as  a  member  of  Congress. 

In  further  answer  to  the  position  that  the  elective  franchise  is  neces- 
sary to  qualify  one  as  a  member  of  Congress,  it  will  appear  from  an  in- 
spection of  the  constitution  of  Maryland  of  1776,  and  in  full  force  in  1806, 
when  Mr.  Key  was  elected  a  member  of  Congress  from  Maryland,  that 
the  qualifications  for  electors  for  the  most  numerous  branch  of  the  leg- 
islature— 

Shall  be  freemen  above  twenty-one  years  of  age,  with  a  freehold  of  fifty  acrea 
of  land  in  the  county  in  which  they  offer  to  vote,  and  residing  therein,  and  all 
freemen  having  property  in  this  State  above  the  value  of  thirty  pounds  current 
money,  and  having  resided  in  the  county  in  which  they  oflfer  to  vote  one  whole  year 
next  preceding  the  election. 

Therefore,  Mr.  Key,  who  was  deemed  qualified  as  a  membpr  of  Con- 
gress, was  not  an  elector  of  the  State  of  Maryland,  and  could  not  vote 
at  the  election  at  which  he  was  returned  as  a  member. 

Without  resting  this  case,  however,  upon  these  grounds,  the  commit- 
tee are  satisfied  from  the  facts  of  the  case,  as  developed  in  the  testimony^ 
that  John  S.  Barbour  was,  in  point  of  fact,  before  and  at  the  time  of  his 
election  as  a  member  of  Congress  from  the  eighth  Congressional  dis- 
trict of  Virginia,  an  actual  inhabitant  of  the  State,  enjoying  all  the 
rights  and  subject  to  all  the  burdens  as  such,  and  that  having  been 
duly  elected  as  a  member  of  Congress  from  said  district  he  is  entitled 
to  his  seat. 

Resolved,  That  John  S.  Barbour  was  duly  elected  and  is  entitled  to  hia 
seat  as  a  member  of  the  Forty- seventh  Congress  from  the  eighth  Con- 
gressional district  of  the  State  of  Virginia. 

#  JOHN  T.  WAIT. 

JAMES  M.  EITCHIE. 

SAMUEL  H.  MILLER. 

LOWNDES  H.  DAVIS. 

SAMUEL  W.  MOULTON. 

W.  H.  CALKINS. 

A.  A.  RANNEY. 

WM.  G.  THOMPSON. 

F.  JACOBS,  Jr. 
GEO.  C.  HAZELTON. 

G.  W.  JONES. 


JONES   VS.    SHELLEY.  681 

JONES  vs.  SHEIiliEY. 

FouftTH  Congressional  District  of  Alabama. 

This  case  grows  out  of  a  special  election  held  November  7, 1882,  to  fill  a  vacancy  ftom 
the  fourth  district  of  Alabama  caused  by  the  unseating  of  Charles  M.  Shelley 
(Smith  vs.  Shelley,  supra,  page  — ),  The  time  for  taking  of  testimony  under  the 
statute  would  extend  beyond  March  4,  when  Congress  would  expire  by  limitation, 
and  contestant  asks  that  some  other  mode  of  procedure  be  prescribed. 

Seld,  That  unless  the  House  does  what  is  asked  the  contest  will  prove  futile ;  that  the 
House  has  authority  to  do  so,  and  recommend  that  a  committee  from  the  Com- 
mittee on  Elections  proceed  to  said  district  and  there  take  the  evidence  which 
may  be  adduced  by  either  party,  and  report  the  same  to  the  House. 


m  MATTER   OF  MEMORIAL  OF   JOHN  W.  JONES  IN  ELEC- 
TION CASE  OF  JONES  VS.  SHELLEY. 

January  23,  1883.— Mr.  Rannej,  from  the  Committee  on  Elections, 
submitted  the  following 

REPORT: 

The  committee  have  heard  the  parties  more  directly  interested,  exam- 
ined the  memorial,  and  inquired  into  the  facts,  so  far  as  is  deemed  nec- 
essary for  present  purposes.  The  House  is  asked  by  the  petitioner,  in 
a  pending  contest  for  the  seat  as  Representative  from  the  fourth  Con- 
gressional district  of  Alabama,  to  fill  a  vacancy,  to  prescribe  another 
and  more  summary  mode  of  procedure  than  that  provided  for  by  the 
acts  of  Congress  relating  to  contested  elections.  The  reason  is  that  the 
time  allowed  the  parties  under  such  acts  is  such  that  the  present  term 
of  Congress  will  have  expired  long  before  the  contest  can  in  regular 
course  be  concluded.  It  is  perfectly  apparent  that  unless  the  House 
does  what  is  asked  the  contest  will  prove  futile.  That  the  House  has 
authority  to  do  what  is  requested  does  not  admit  of  a  doubt.  The  only 
question  is  whether  there  is  time  now  before  the  end  of  the  session  to 
accomplish  the  desired  purpose,  or  whether  any  other  mode  of  pro- 
cedure which  is  reasonable  and  practicable  can  avail  anything.  The 
memorial  sets  forth  with  great  clearness  and  completeness  a  state  of 
facts  which  calls  loudly  for  such  action,  if  it  is  likely  to  be  of  any  use 
commensurate  with  the  attendant  labor  and  expense  thereof. 

The  sitting  member,  after  having  been  once  unseated  at  the  present 
Congress,  has  been  again  returned  with  a  new  certificate  in  hand  to  fill 
the  vacancy.  He  was  unseated  because  the  certificate  before  was  the 
result  of  frauds  at  the  polls,  and  the  fruits  of  illegal  and  evil  practices 
on  the  part  of  his  partisan  friends.  His  present  certificate  is  alleged  to 
hfive  been  induced  and  procured  by  the  same  methods  in  repetition, 
with  perhaps  some  variations  and  aggravations. 

If  this  is  so,  it  would  seem  that  there  is,  as  charged,  a  settled  deter- 
mination on  the  part  of  the  evil-disposed  persons  therein  that  no  can- 
didate of  the  dominant  party  in  the  district  in  question  shall  be  counted 
in  and  get  the  certificate  in  any  event. 

A  brief  statement  of  some  of  the  main  facts  alleged  will  suffice : 

A  contest  was  regularly  instituted  under  the  said  acts  of  Congress, 
and  the  sitting  member  has  served  an  answer  to  the  same,  so  that  the 


682  DIGEST   OP   ELECTION   CASES. 

contest  is  now  pending.  The  ninety  days  allowed  for  the  taking  of  the 
evidence  will  extend  beyond  the  4th  day  of  March  next. 

The  sitting  member  was  declared  elected  on  the  strength  of  a  vote 
returned  of  only  6,752,  whereas  the  claim  is  that  he  did  not  in  truth  and 
in  fact  get  over  about  5,000  votes.  Contestant  was  de'Mared  and  re- 
turned to  the  State  board  of  canvassers  as  having  received  only  4,811, 
whereas  he  in  truth  and  in  fact  received  over  15,000  votes,  which  were 
legally  cast,  counted,  and  returned  to  the  boards  of  county  canvassers, 
but  10,000  of  which  were  there  counted  out  either  for  no  assignable  rea- 
son or  because  of  certain  pretended  informalities  in  the  returns  and 
upon  frivolous  objections  which  were  resorted  to  only  as  pretexts  in  an 
earnest  search  for  some  real  or  plausible  excuse.  There  are  other 
charges  of  fraud  of  a  more  heinous  character,  which  deprived  contest- 
ant of  many  votes  in  the  original  returns  5  but  laying  those  aside  and 
taking  the  returns  as  made  from  the  voting  precincts  to  the  county 
boards  the  contestant  is  said  to  have  been  elected  by  about  6,000  ma- 
jority ;  the  reports  of  the  United  States  supervisors  give  him  about  that 
majority,  as  would  appear  by  certified  copies  furnished  the  committee. 
It  will  appear  that  the  vote  of  the  sitting  member  (6,752)  is  less  than 
one-third  of  the  votes  cast  for  both  candidates  according  to  the  pre- 
cinct returns.  It  is  less  than  one-third  of  the  votes  cast  in  jjrior  elec- 
tions in  the  same  district  for  members  of  Congress,  as  api)ears  by  the 
history  of  those  elections  as  read  from  the  records  of  this  House.  It  is 
less  than  one-fourth  of  the  voting  i3opulation  of  the  district,  as  appears 
by  the  last  census,  and  .as  shown  in  the  last  prior  contest  alluded  to. 

The  well-known  facts  of  history,  as  found  and  proved  in  prior  con- 
tests from  this  district,  to  which  the  sitting  member  was  a  party,  tend 
to  give  an  air  of  probability  to  the  main  and  essential  facts  alleged  in 
the  memorial.  Besides  this,  if  the  committee  needed  any  further  infor- 
mation, all  advices  which  they  get  from  reputable  and  honorable  men 
of  the  district,  and  who  appear  to  be  cognizant  of  the  facts,  are  to  the 
same  effect.  It  is  confidently  asserted  and  believed  by  many  who  feel 
an  interest  in  having  fair  elections  and  honest  counts  that  they  can  be 
secured  in  the  immediate  future  only  through  vigorous  action  on  the 
part  of  Congress  of  a  legislative  character. 

If  what  is  alleged  is  true  it  would  seem  that  what  has  occurred  in  the 
district  is  subversive  of  the  fundamental  principles  of  a  republican  form 
of  government,  and  that  anything  like  fairness  and  honesty  in  the  con- 
duct of  elections,  and  especially  in  the  subsequent  canvassing  of  the 
returns,  seems  to  be  out  of  the  question ;  that  unfairness  and  dishonesty 
is  the  rule  and  not  the  exception  on  the  part  of  the  partisan  friends  of 
the  sitting  member ;  that  the  same  is  practiced  deliberately,  persist- 
ently, openly,  and  in  apparent  bold  defiance  of  the  law  of  Alabama 
and  as  held  in  Congress.  The  record  which  this  House  contains  of 
the  facts  which  have  been  proved  in  the  prior  election  cases  from  the 
same  district,  showing  how  a  party  with  a  clear  majority  of  four  to  one 
have  uniformly  been  deprived  of  their  rights  and  the  certificate  wrong- 
fully given  to  a  minority  candidate,  is  a  sad  and  sickening  one  for  those 
who  believe  in  fair  dealing,  and  credit  the  facts  as  alleged.  But  lay- 
ing those  considerations  aside  as  only  important  now  so  far  as  they 
enforce  other  considerations  which  must  determine  the  propriety  and 
wisdom  of  the  action  which  the  memorialist  invokes,  it  is  sufficient  to 
say  that  the  facts  alleged  in  the  memorial,  confirmed  and  rendered  highly 
probable  as  they  are  by  other  well-known  facts  and  from  other  sources 
outside,  entitle  the  contestant  to  the  means  of  taking  other  proofs  and 
to  the  remedy  which  he  seeks.    If  the  sitting  member  has  a  certificate 


JONES    VS.    SHELLEY.  683 

which  was  wrongfully  awarded  him  by  tho  means  and  methods  set  forth 
in  the  memorial,  and  upon  the  state  of  facts  alluded  to,  he  should  not 
be  permitted  to  hold  the  seat  for  a  day  or  a  minute  longer  than  is  ab- 
solutely necessary  under  the  usages  of  this  House.  It  is  due  to  the 
honest  electors  of  the  district  and  to  the  whole  country,  as  well  as  the 
cause  of  good  government,  that  an  opportunity  should  be  afforded  to 
prove  or  disprove  the  facts  alleged. 

The  committee  therefore  report  and  recommend  the  passage  of  the 
following  preamble  and  resolution,  being  assured  that  all  the  needed 
evidence  upon  the  main  issue  of  fact  will  be  mainly  documentary  and 
can  be  taken  in  course  of  about  ten  days : 

Whereas  John  W.  Jones  claims  to  have  been  elected  as  Representa- 
tive from  the  fourth  Congressional  district  of  Alabama,  to  fill  a  vacancy, 
and  has  instituted  proceedings  for  a  contest  under  the  provisions  of  the 
acts  of  Congress  relating  to  contested  elections ;  and  whereas  there  is  not 
sufficient  time  to  prosecute  and  conclude  said  contest  under  the  provis- 
ions of  said  acts  and  in  course  before  the  exi)iration  of  the  present  term 
of  Congress,  and  the  contest  must  be  abandoned  unless  some  other 
more  speedy  mode  of  precedure  be  prescribed :  Therefore, 

Eesolved,  That  a  special  committee,  composed  of  three  members  of 
the  Committee  on  Elections,  be  appointed,  with  authority,  and  whose 
duty  it  shall  be  to  proceed,  without  unnecessary  delay,  to  the  fourth 
Congressional  district  of  Alabama,  and  there  take  the  evidence  which 
may  be  adduced  by  either  party  in  the  matter  of  the  pending  contest, 
and  re])ort  the  same  to  the  House  as  soon  as  may  be.  That  the  com- 
mittee appointed  is  empowered  to  send  for  persons  and  papers  and  ad- 
minister oaths,  and  also  to  employ  stenographers,  messengers,  and  a 
sufficient  clerical  force,  at  the  usual  compensation,  the  expenses  to  be 
paid  out  of  the  contingent  funds  of  the  House,  upon  the  approval  of 
the  chairman  of  said  committee. 


IN  RE  CONTESTED-ELECTION  CASE  OF  JOHN  W.  JONES, 
CONTESTANT,  AGAINST  CHARLES  M.  SHELLEY,  CON- 
TESTEE. 

Held,  That  the  rule  of  law  being  that  the  ordinary  methods  of  trying  contested-elec- 
tion cases  in  accordance  with  the  provisions  of  the  act  of  Congress  will  not  be 
departed  from  without  good  cause,  no  such  cause  has  been  shown. 

Mr.  Beltzhoover,  of  the  Committee  on  Elections,  to  whom  was  re- 
ferred a  certain  memorial  of  the  above-stated  contestant,  submits  the 
following 

VIEWS   OF  THE   MINORITY: 

The  records  of  the  Committee  on  Elections,  and  the  answer  of  the  con- 
testee  made  at  the  summary  hearing  of  the  memorial  before  the  com- 
mittee, show  that  at  the  election  held  on  November  7,  1882,  to  fill  the 
vacancy  in  the  fourth  Congressional  district  of  Alabama,  the  contestee 
wab  duly  elected  and  received  the  certificate ;  that  upon  the  reassem- 
bling of  Congress  in  December  he  was  sworn  in,  and  is  now  the  sitting 
member  from  the  district.  All  the  presumptions  of  law  are  in  favor  of 
the  legality  and  regularity  of  the  election  and  the  validity  of  the  certifi- 
cate which  is  the  evidence  of  the  contestee's  title.    The  contestant  served 


684  DIGEST    OF    ELECTION    CASES. 

a  notice  of  contest  regularly  on  the  contestee,  who  filed  an  answer, 
and  both  parties  are  now  engaged  in  the  prosecution  of  the  contest 
and  in  taking  testimony.  The  usual  and  well-established  method  of 
determining  the  legality  of  said  election  is  by  pressing  this  contest 
under  the  law  to  a  decision  before  the  committee  and  the  House.  It  is 
true  that  it  has  been  held  that  the  acts  of  Congress  regulating  contests 
are  only  directory  and  not  imperative,  and  may  therefore  be  disregarded 
by  the  House  if  it  sees  proper  to  do  so ;  but  all  the  best  interests  of  fair 
trial  and  just  judicial  determination  are  largely  subserved  by  adhering 
to  the  regular  prescribed  methods.  McOrary  says :  "  They  [the  stat- 
utes regulating  the  mode  of  contesting  elections]  constitute  wholesome 
rules  not  to  be  departed  from  rcithout  cause''''  (sec.  349).  This  was  set- 
tled by  the  House  in  the  case  of  Williamson  vs.  Sickels  (1  Bartlett,  288). 
The  contestant,  through  his  memorial,  asks  Congress  to  take  a  short  cut 
outside  of  the  law  for  the  disposition  of  the  case  by  the  appointment  of 
a  special  committee  with  summary  powers  and  authority  to  act  accord- 
ing to  its  own  discretion.  There  are  strong  reasons  why  this  extraor- 
dinary relief  should  be  refused  and  the  regular  practice  be  adhered  to. 

First.  The  contestant  complains  that  the  time  is  insuflBcient  to  finish 
his  contest  in  the  way  prescribed  by  the  statute.  But  there  is  no  evi- 
dence that  this  is  so,  and  even  if  it  were  he  has  been  guilty  of  laches  in 
conducting  his  case.  He  might  have  begun  about  thirry  days  sooner 
than  he  did,  and  thereby  saved  a  large  portion  of  the  brief  time  which 
of  necessity  remained  to  him  to  test  his  rights,  and  which  he  now  com- 
plains is  too  short. 

Second.  After  the  memorial  had  been  filed  the  contestee  appeared 
at  the  room  of  the  Committee  on  Elections  early  in  the  present  sessioD,  in 
compliance  ^vith  a  notice,  for  the  purpose  of  answering  said  memorial,  but 
the  contestant  did  not  appear.  The  contestant  then  requested  that  if 
at  any  time  the  memorial  was  to  be  considered  by  the  committee  a  no- 
tice should  be  sent  to  him.  He  never  received  any  such  notice  until  he 
was  directed  to  appear  before  the  committee  after  the  report  of  the  sub- 
committee was  in  print.  In  addition  to  this  the  contestant  told  the 
contestee  that  he  did  not  intend  to  proceed  on  the  memorial,  but  that 
he  would  follow  up  the  contest,  and  in  conformity  to  this  understand- 
ing both  parties  are  now  prosecuting  the  contest  under  the  law. 

Third.  It  is  utterly  impossible  for  any  committee  to  go  to  Alabama 
and  in  the  time  remaining  before  the  end  of  the  present  session  of  Con- 
gress take  the  testimony  which  of  necessity  will  have  to  be  taken 
if  it  is  begun  de  novo  to  show  all  the  facts  in  the  case.  The  district 
embraces  five  counties  and  is  90  miles  long  and  80  miles  wide.  In 
one  of  the  counties  there  is  no  railroad  communication  within  16  miles  of 
the  county  seat.  It  would  be  wholly  impracticable  to  make  anything 
like  a  reasonable  effort  at  getting  testimony  in  less  than  five  days  for 
each  county,  and  this  would  necessarily  be  exclusive  of  the  time  required 
for  serving  notices,  subpoenaing  witness,  traveling,  &c. 

Fourth.  A  special  committee  will  cost  several  thousand  dollars,  with- 
out any  reason  whatever  to  believe  that  it  would  result  in  obtaining 
anything  but  a  mere  fraction  of  the  evidence,  which  being  taken  first 
and  by  the  contestant,  would  probably  tend  to  support  the  allegations 
in  his  memorial,  and  be  the  basis  for  an  unjust  partisan  judgment  in  his 
ftivor.  The  report  of  the  majority  of  the  committee  seems  to  point  to 
this  when  it  suggests  that  the  returns  would  be  sufiQcient  to  justify  the 
seating  of  the  contestant.  This  proposition  is  based  on  the  assumption 
that  the  returns  referred  to  are  legal  and  regular.  On  the  contrary, 
they  are  stated  to  be  irregular  and  utterly  false  and  fraudulent.  Among 
other  charges  made  against  them  by  the  contestee  are  these : 


JONES    VS.    SHELLEY.  685 

1.  Most  of  these  returns,  which  the  contestant  wants  to  drag  in  as 
conclusive  evidence  of  his  rights  in  this  unusual  way,  passed  through  the 
Kei>ublican  headquarters  on  their  way  to  the  several  court-houses  of  the 
district,  and  were  manipulated,  changed,  altered,  and  fixed  up  to  suit 
the  interests  of  the  contestant's  party  managers.  It  is  submitted  that 
under  these  circumstances  these  Returns  would  not  be  such  evidence  as 
should  be  admitted  without  an  ample  opportunity  to  explain  and  con- 
tradict them  by  parol  testimony. 

2.  George  H.  Craig,  who  is  the  counsel  for  the  present  contestant, 
was  a  candidate  for  election  to  the  Forty-eighth  Congress  on  the  same 
ticket  and  at  the  same  elo-ction  at  which  the  contestant  ran.  Craig 
and  Jones  were  both  candidates  at  the  same  time,  conducted  their  cam- 
paign together,  were  both  beaten,  are  both  contestants,  and  are  now 
pooling  the  issues  of  their  contests.  They  controlled  and  secured  the 
naming  of  all  the  Democratic  supervisors  of  election,  although  the 
Democratic  committee  had  submitted  a  list  of  persons  who  were  thor- 
oughly qualified  and  were  trusted  representatives  of  the  party  whose 
interests  they  were  intended  to  guard.  The  Democrats  who  were  named 
as  supervisors  by  the  friends  of  the  Republican  candidates,  besides  be- 
ing in  many  instances  not  well  fitted  in  many  ways,  were  not  of  that 
class  whose  party  fealty  made  them  fair  representatives  of  their  party. 

3.  The  memorial  upon  which  the  committee  base  their  report  is  the 
work  of  Mr.  Craig,  who  contests  the  seat  of  Mr.  Shelley  in  the  next 
Congress,  and  the  effect  of  an  imperfect  and  hasty  and  unfair  investiga- 
tion now  would  be  to  greatly  prejudice  the  case  of  the  latter  and  help 
the  case  of  the  former.  This  Congress  has  had  contested-election  cases 
enough  of  its  own  without  embarking  in  the  business  of  setting  up  small 
side  shows  to  help  along  contests  in  the  next  House. 

4.  The  United  States  marshal  gave  Messrs.  Craig  and  Jones  an  in- 
definite quantity  of  blank  commissions  for  deputy  marshals,  to  be  filled 
up  for  whoever  they  saw  fit  and  wherever  they  would  do  the  most  good 
for  the  Eepublican  candidates  in  this  grand  duplex  combination. 

Fifth.  The  report  of  the  majority  of  the  Committee  on  Elections  rec- 
ommending that  a  special  committee  be  created  with  indefinite  and 
arbitrary  powers  is  as  positive  and  dogmatic  in  its  findings  as  if  they 
were  sustained  by  facts.  The  report  rests  solely  on  the  mere  ex  parte 
statement,  not  under  oath,  of  the  memorialist,  whom  the  contestee  con- 
tradicts in  every  material  allegation.  What  evidence  is  there  in  this 
memorial  which  any  court  would  regard  of  the  slightest  weight  f  No 
chancellor  would  grant  anj'  relief  on  it  without  some  verification  of  its 
allegations.  No  Committee  of  Elections  or  House  of  Representatives  on 
such  statements  alone  have  ever  characterized  the  citizens  and  sworn 
officers  of  any  Congressional  district  as  "  evil-disposed  persons,"  &c. 
No  committee  has  ever  based  a  finding  on  the  fact  that  the  returned 
candidate  had  received  less  than  one-third  of  the  votes  cast  at  the  pre- 
vious elections  or  less  than  the  voting  population  of  the  district.  This 
kind  of  evidence,  which  is  always  incompetent,  is  still  more  unreliable 
when  it  is  remembered  that  in  this  instance  the  election  was  to  fill  a 
vacancy  of  only  a  few  months,  and  there  was  no  general  interest  taken 
in  the  result,  and  no  reason  for  a  full  vote  being  cast.  But  in  order  to 
support  their  report  the  majority  resort  to  "  all  advices  which  they  get 
from  reputable  and  honorable  rneu  of  the  district  and  who  appear  to  be 
cognizant  of  the  facts."  What  are  these  *' advices"?  Who  are  they 
from  !  Is  Congress  to  solemnly  adjudicate  upon  the  right  of  a  member 
to  a  seat  on  the  hearsay  and  rumor  which  members  gather  in  their  pri- 


686  DIGEST    OF    ELECTION   CASES. 

vate  communications  with  persons  unknown  and  unsworn,  and  of  whom 
and  of  which  there  is  no  public  or  verified  knowledge  ? 

The  majoritj^  of  the  Committee  on  Elections  further  bolster  their  re- 
markable report  by  saying  "  that  the  facts  alleged  in  the  memorial, 
confirmed  and  rendered  highly  probable  as  tbej^  are  by  other  well-known 
facts  and  from  other  sources  outside^  entitle  the  contestant  to  the  relief 
which  he  asks,"  &c. 

This  committee  in  the  case  of  Mackey  vs.  Dibble  refused  to  investi- 
gate by  a  commission  charges  of  fraudulent  interference  with  and  forgery 
of  the  pretended  evidence  offered  to  make  out  the  case  for  the  contestant, 
yet  in  that  case  these  charges  were  made  upon  and  fortified  by  the 
sworn  affidavits  of  several  witnesses.  We  are  met  also  with  the  stale 
argument  that  all  the  colored  voters  must  be  presumed  to  beEepublicans, 
and  in  addition  must  be  presumed  to  have  voted  for  every  Republican 
candidate.  To  test  it  let  it  be  supposed  that  the  memorialist  was  an 
escaped  convict  from  the  North  Carolina  penitentiary,  where  he  had 
been  sentenced  for  a  high  crime.  Suppose  he  was  a  fugitive  from  jus- 
tice who  had  eluded  the  prison  keepers  and  was  seeking  an  asylum  as  a 
Eepublican  Representative  in  Congress.  Suppose  that  his  history  and 
character  was  such  that  if  he  were  here  at  the  bar  of  the  House  he 
could  not  be  sworn  in  under  the  information  within  the  personal 
knowledge  of  the  members  of  the  present  House.  If  these  things  were 
true,  would  it  not  be  a  violent  and  unwarranted  assumption  of  fact 
that  all  the  colored  people  of  the  district  in  which  this  contention 
arises  would  vote  for  him  ?  How  does  the  House,  before  making  the 
inquiry,  know  what  fact  may  exist  affecting  the  popularity  of  the  can- 
didate? Has  he  integrity  and  intelligence?  Do  the  colored  people 
all  vote  the  Republican  ticket,  and  do  they  support  the  candidate  of 
the  party  without  respect  to  character,  fitness,  intelligence,  or  integrity  ? 
Do  these  qualities  affect  the  popularity  of  a  candidate  among  them  ? 
If  so,  reputable  colored  people  of  the  district  have  some  rights  which 
even  a  Republican  committee  in  its  direst  exigency  should  respect. 
The  continuous  cry  of  fraud  against  elections  in  the  South,  on  the 
assumption  that  all  the  colored  people  vote  the  Republican  ticket,  is 
itself  becoming  a  fraud.  On  this  theory  the  election  committee,  con- 
sisting of  eleven  Republicans  and  four  Democrats — a  majority  of  two- 
thirds  and  one  to  spare — vindicated  the  fundamental  principles  of  re- 
publican government  at  the  last  session  by  unseating  General  Shelley, 
who  had  been  elected  by  over  3,000  majority.  They  vindicated  the 
same  great  and  essential  principles  by  ousting  Mr.  Finley,  Mr.  Dibble, 
Mr.  Wheeler,  Mr.  Tillman,  and  others,  but  their  appeal  to  the  country 
resulted  in  ousting  the  ousters,  and  returned  to  their  places  again  most 
of  the  victims  of  this  unholy  crusade  with  an  overwhelming  Democratic 
majority  at  their  back. 

Sixth.  The  rule  of  law  being  that  the  ordinary  method  of  trying  con- 
tested elections  in  accordance  with  the  provisions  of  the  act  of  Congress 
will  not  be  departed  from  without  good  cause,  it  is  respectfully  submitted 
that  under  all  the  circumstances  in  this  case  no  such  cause  has  been 
shown. 

F.  E.  BELTZHOOVER. 

GIBSON  ATHERTON. 

L.  H.  DAVIS. 

S.  W.  MOULTON. 


LIST     OF     CASES. 

rORTY-SBVENTH    CONGRESS. 


PaKe. 

Andersok  V8.  Reed,  first  Congressional  district  of  Maine 284 

Bayley  vs.  Barbouir,  eighth  Congressional  district  of  Virginia 676 

BiSBEE  V8.  FiNLEY,  second  Congressional  district  of  Florida 172 

Buchanan  vs.  Manning,  second  Congressional  district  of  Mississippi 287 

Cannon  vs.  Campbell,  Territory  of  Utah 604 

Cook  vs.  Cutts,  sixth  Congressional  district  of  Iowa  243 

Jones  vs.  Shelley,  fourth  Congressional  district  of  Alabama 681 

Lee  vs.  Richardson,  first  Congressional  di  strict  of  South  Carolina 520 

Lowe  vs.  Wheeler,  eighth  Congressional  district  of  Alabama 61 

Lynch  vs.  Chalmers,  sixth  Congressional  district  of  Mississippi 338 

Mabson  vs.  Gates,  third  Congressional  district  of  Alabama 8 

Mackey  vs.  O'Connor,  second  Congressional  district  of  South  Carolina 561 

Sbssinghaus  vs.  Frost,  third  Congressional  district  of  Missouri 380 

Smalls  vs.  Tiixman,  fifth  Congressional  district  of  South  Carolina 4'M> 

Smith  vs.  Robertson,  sixth  Congressional  district  of  Louisiana 284 

Smith  vs.  Shelley,  fourth  Congressional  district  of  Alabama 18 

Stole  rand  vs.  Aiken,  third  Congressional  district  of  South  Carolina 603 

Stovall  vs.  Cabell,  fifth  Congressional  district  of  Virginia 667 

Strobach  vs.  Herbert,  second  Congressional  district  of  Alabama 5 

WiTHERSPOON  vs.  Davidson,  first  Congressional  district  of  Florida 163 

(687) 


INDEX. 


Page. 

Aiken,  D.  Wyatt,  contestee,  third  district  of  South  Carolina 603 

Alabama — Jones  rs.  Shelley 681 

Mabson  v8.  Gates 8 

Smith  vs.  Shelley 18 

Strobach  v8.  Herbert 6 

Anderson,  Samuel  J.,  vs.  Thomas  B.  Reed,  contested  election,  first  district  of 

Maine 284 

Anderson  vs.  Reed,  report  of  committee 284 

resolution  adopted 286 

Atherton,  Hon.  Gibson,  Ohio,  member  of  Committee  on  Elections .    3 

B. 

Barbour,  John  S.,  contestee,  eighth  district  of  Virginia 676 

Bayley,  S.  p.,  vs.  John  S.  Barbour,  contested  election,  eighth  district  of  Vir- 
ginia      676 

Bayley  vs.  Barbour,  report  of  committee 676 

resolution  adopted 680 

Beltzhoover,  Hon.  F.  E.,  Pennsylvania,  member  of  Committee  on  Elections 3 

BiSBEE,  Horatio,  Jr.,  vs.  Jesse  J.  Finley,  contested  election,  second  district 

of  Florida • IZg 

Bisbee  vs.  Finley,  majority  report ^ 172 

minority  report 202 

resolutions  adopted 194 

Buchanan,  George  M.,  vs.  Van  H.  Manning,  contested  election,  second  district 

of  Mississippi 287 

Buchanan  vs.  Manning,  majority  report 287 

minority  report 298 

resolutions  adopted 297 

C. 

Cabell,  George  C,  contestee,  fifth  district  of  Virginia 667 

Calkins,  Hon.  W.  H.,  chairman  of  Committee  on  Elections 3 

Campbell,  Allen  G.,  contestee.  Territory  of  Utah 604 

Cannon,  George  Q.,  vs.  Allen  G.  Campbell,  contested  election,  Territory  of 

Utah 604 

Cannon  vs.  Campbell,  majority  report 605 

minority  report - 655 

views  of  Mr.  Thompson 614 

Mr.  Pettibone 618* 

Mr.  Miller 624 

Mr.  Jacobs 628 

Mr.  Beltzhoover 629 

Mr.  Ranney 641 

Mr.  At  herton 648 

Chairman  of  Committee  on  Elections,  Hon.  W.  H.  Calkins. 3 

Chalmers,  James  R.,  contestee,  sixth  district  of  Mississippi 338 

Clerk  of  Committee  on  Elections,  J.  H.  Ellsworth 3 

Committee  on  Elections •* 

Cook,  John  C,  vs.  M.  E.  Cutts,  contested  election,  sixth  district  of  Iowa 243 

Cook  r«.  Cutts,  majority  report 244 

njiiiority  report - 252 

resolutions  adopted , 252 

Cutts,  M.  E.,  contestee,  sixth  district  of  Iowa 243 

H.  Mis.  35 44 


690  INDEX. 

D. 

Page. 

Davidson,  R.  M.  H. ,  cont«stee,  first  district  of  Florida 163 

Davis,  Hou.  L.  H.  Missouri,  member  of  Committee  on  Elections 3 

Dibble,  Samuel,  claimant,  second  district  of  South  Carolina 561 

E. 

Elections,  Committee  on 3 

Ellsworth,  J.  H.,  Indiana,  clerk  of  Committee  on  Elections 3 

F. 

Finley ,  Jesse  J. ,  coutestee,  second  district  of  Florida , 172 

Florida — Bisbee  vs.  Finley 172 

WiTHERSPOON  vs.  Davidson 1^ 

H. 

Hazelton,  Hon.  George  C,  Wisconsin,  member  of  Committee  on  Elections.   ...  3 

Herbert,  Hilary  A. ,  contestee,  second  district  of  Alabama 5 

I. 

Iowa — CooKr«.  Cutts 243^ 

J. 

Jacobs,  Hon.  Ferris,  jr.,  New  York,  member  of  Comiiiittee  ou  Elections 3 

Jones,  Hon.  G.  W.,  Texas,  member  of  Committee  on  Elections 3 

Jones,  J.  W.,  vs.  C.  M.  S|ielley,  contested  election,  fourth  district  of  Ala- 
bama   : 681 

Jones  r«.  Shelley,  majority  report 681 

minority  report 683 


Lee,  Samuel,  ««.  John  S.  Richardson,  contested  election,  first  district  of  South 

Carolina 520 

Lee  v8.  Richardson,  majority  report , 520 

minority  report 521 

note  by  compiler 520 

Louisiana— Smith  vs.  Robertson 284 

Lowe,  W.  M.,  vs.  Joseph  Wheeler,  contested  election,  eighth  district  of  Ala- 
bama   61 

Lowe  vs.  Wheeler,  majority  report 62 

minority  report , 98 

resolutions  adopted 78 

Lynch,  John  R.,t'8.  James  R.  Chalmers,  contested  election,  sixth  district  of 

Mississippi 338 

Lynch  vs.  Chalmers,  majority  report 338 

minority  report 3(il 

resolutions  adopted 360 

M. 

Mabson,  a.  a.,  vs.  W.  C.  Gates,  contested  election,  third  district  of  Alabama.  8 

Mabson  vs.  Gates,  report  of  committee 8 

Maine — Anderson  vs.  Reed 284 

Manning,  Van  H.,  contestee,  second  district  of  Mississippi 287 

Mackey,  E.  W.  M.,vs.M.  p.  G'Connor,  contested  election,  second  district  of 

South  Carolina 561 

Maceby  vs.  O'Connor,  majority  report 562 

minority  report 578 

resolutions  adopted 578 


INDEX.  691 

Miller,  Hon.  S  H.,  Pennsylvania,  member  of  Committee  on  Elections 3 

Mississippi — Buchanan  V8.  Manning 287 

Lynch  vs.  Chalmers 338 

Missouri — Sessinghaus  vs.  Frost *  390 

Moiilton,  Hon.  S.  W.,  Illinois,  member  of  Committee  on  Elections 3 

O. 

Oates,  W.  C,  contestee,  third  district  of  Alabama 3 

O'Connor,  Michael  P.,  contestee,  second  district  of  South  Carolina 561 

%  P. 

Paul,  Hon.  John,  Virginia,  member  of  Committee  on  Elections 3 

Pettibone,  Hon.  A.  H. ,  Tennessee,  member  of  Committee  on  Elections 3 


Rauney,  Hon.  A.  A.,  Massachusetts,  member  of  Committee  on  Elections 3 

Reed,  Thomas  B.,  contestee,  first  district  of  Maine 284 

Richardson,  John  S.,  contestee,  first  district  of  South  Carolina 520 

Ritchie,  Hon.  J.  M.,  Ohio,  member  of  Committee  on  Elections 3 

Robertson,  E.  W.,  contestee,  sixth  district  of  Louisiana 284 

S. 

SE8SINGHAUS,  GusTAVUS,  VS.  R.  Graham  Frost,  contested  election,  third  district 

of  Missouri 380 

Sessinghaus  vs.  Frost,  majority  report 38r~ 

minority  report 399 

resolutions  adopted  ...•- 396 

Shelley,  Charles  M.,  contestee.  Smith  vs.  Shelley,  fourth  district  of  Alabama.  18 

contestee,  Jones  vs.  Shelley,  fourth  district  of  Alabama.  681 
Smalls,  Robert,  vs.  George  D.  Tillman,  contested  election,  fifth  district  of 

South  Carolina 430 

Smalls  vs.  Tillman,  majority  report 431 

minority  report 483 

resolutions  adopted 483 

Smith,  Alexander,  vs.  E.  W.  Robertson,  contested  election,  sixth  district  of 

Louisiana 284 

Smith  vs.  Robertson,  report  of  committee 284 

Smith,  James  Q.,  «».  Charles  M.  Shelley,  contested  election,  fourth  district 

of  Alabama 18 

Smith  vs.  Shelley,  majority  report 18 

minority  report 45 

resolutions  adopted 32 

South  Carolina — Lee  vs.  Richardson 520 

Mackey  vs.  O'Connor 5fil 

Smalls  t'8.  Tillman 430 

Stolbrand  vs.  AiKfcN 603 

Stolbrand,  Carlos,  J.,t;«.  D.  Wyatt  Aiken,  contested  election,  third  district 

of  South  Carolina 603 

Stolbrand  vs.  Aiken,  report  of  committee 603 

resolutions  adopted 604 

Stovall,  John  T.,  t"«.  George  C.  Cabell,  contested  election,  fifth  district  of 

Virginia 667 

Stovall  V8.  Cabell,  report  of  committee 667 

resolutions  adopted 675 

Strobach,  Paul,  vs.  Hilary  A.  Herbert,  contested  election,  second  district 

of  Alabama 5 

Strobach  vs.  Herbert,  report  of  committee !» 

resolution  adopted 7 

T. 

Thompson,  Hon.  W.  G.,  Iowa,  member  of  Committee  on  Electiona 3 

Tillman,  George  D.,  contestee,  fifth  district  of  South  Carolina 430 


692  INDEX. 

u. 

Page. 
tJtah — Cannon  vs.  Campbell 604, 

V. 

Tirginia— Ba  YLEY  vs.  Barbour 676 

Stovall  vs.  Cabell 667 

W. 

m 

Wait,  Hon.  John  T.,  Connecticut,  member  of  Committee  on  Elections 3 

Wheeler,  Joseph,  contestee,  eight  district  of  Alabama 61 

WiTiiERSPOON,  G.  W.,  vs.  R.  M.  H.  Davidson,  contested  election,  first  district 

of  Florida 163 

W1THER8POON  vs  Davidson,  report  of  committee 163 

O 


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